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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Jackson delivered the opinion of the Court. As this suit in equity was commenced in United States District Court it sought two kinds of specific relief: (1) a declaratory judgment that complainant’s carriage of motion picture film and newsreels between points in Utah constitutes interstate commerce; (2) that the Public Service Commission of Utah and its members be forever enjoined from interfering with such transportation over routes authorized by the Interstate Commerce Commission. The complaint alleged a course of importing, processing and transporting picture film and newsreels to support the contention that carriage between points in Utah was so integrated with their interstate movement that the whole constituted interstate commerce. It averred that the Commission and its members “threaten to and are attempting to stop and prevent plaintiff from transporting motion picture film and newsreels between points and places within the State of Utah, and they are thereby interfering with the conduct of interstate commerce by the plaintiff and imposing an undue burden upon interstate commerce,” and that unless the defendants are enjoined they will “block, harass and prevent plaintiff in the transportation of said motion picture film and newsreels in Utah.” The Commission and its members answered that respondent’s transportation between points in Utah was nothing more than intrastate commerce. They specifically denied attempting, threatening, or intending to interfere with or burden interstate commerce. The District Court, after trial, sustained the contention of the Commission and dismissed the complaint. The Court of Appeals considered only “whether the intrastate transportations are nonetheless integral parts of interstate transportations.” It held the evidence to warrant an affirmative answer, reversed the judgment of the District Court and ordered further proceedings in conformity with that view. We granted certiorari, requesting counsel to discuss whether a single judge could hear and determine the case in view of 28 U. S. C. § 2281. That section provides that an injunction restraining enforcement of a state statute or the order of an administrative body thereunder “shall not be granted” upon the ground of unconstitutionality unless the application is heard and determined by a district court of three judges as provided in 28 U. S. C. § 2284. The respondent, which was plaintiff, contends that a three-judge court was not required, because the suit does not question constitutionality of any Utah statute nor the validity of any order of the State Commission. It says also that no injunction has been granted or even urged “outside of the naked recitation in the prayer of the Complaint.” It offered no evidence whatever of any past, pending or threatened action by the Utah Commission touching its business in any respect. The pleadings made that a clear-cut issue, which seems to have been completely ignored thereafter. The only issues defined on pretrial hearing were whether as matter of fact and of law the within-state transportation constituted interstate commerce. The trial court, however, made a general finding that no such interference had been made or threatened, which was not reversed or mentioned by the Court of Appeals. For more reasons than one it is clear that this proceeding cannot result in an injunction on constitutional grounds. In addition to defects that will appear in our discussion of declaratory relief, it is wanting in equity because there is no proof of any threatened or probable act of the defendants which might cause the irreparable injury essential to equitable relief by injunction. The respondent appears to have abandoned the suit as one for injunction but seeks to support it as one for declaratory judgment, hoping thereby to avoid both the three-judge court requirement and the necessity for proof of threatened injury. Whether declaratory relief is appropriate under the circumstances of this case apparently was not considered by either of the courts below. But that inquiry is one which every grant of this remedy must survive. The Declaratory Judgment Act of 1934, now 28 U. S. C. § 2201, styled “creation of remedy,” provides that in a case of actual controversy a competent court may “declare the rights and other legal relations” of a party “whether or not further relief is or could be sought.” This is an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant. Previous to its enactment there were responsible expressions of doubt that constitutional limitations on federal judicial power would permit any federal declaratory judgment procedure. Cf. Liberty Warehouse Co. v. Grannis, 273 U. S. 70; Willing v. Chicago Auditorium Assn., 277 U. S. 274; Arizona v. California, 283 U. S. 423; Piedmont & N. R. Co. v. United States, 280 U. S. 469. Finally, as the practice extended in the states, we reviewed a declaratory judgment rendered by a state court and held that a controversy which would be justiciable in this Court if presented in a suit for injunction is not the less so because the relief was declaratory. Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249. Encouraged by this and guided by the experience of the thirty-four states that had enacted such laws, the Senate Judiciary Committee recommended an adaptation of the principle to federal practice. Its enabling clause was narrower than that of the Uniform Act adopted in 1921 by the Commissioners on Uniform State Laws, which gave comprehensive power to declare rights, status and other legal relations. The Federal Act omits status and limits the declaration to cases of actual controversy. This Act was adjudged constitutional only by interpreting it to confine the declaratory remedy within conventional “case or controversy” limits. In Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 325, the Court said, “The Act of June 14, 1934, providing for declaratory judgments, does not attempt to change the essential requisites for the exercise of judicial power” which still was to be tested by such established principles as that “the judicial power does not extend to the determination of abstract questions” and that “claims based merely upon 'assumed potential invasions’ of rights are not enough to warrant judicial intervention.” In Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, Mr. Chief Justice Hughes used the whole catalogue of familiar phrases to define and delimit the measure of this new remedy. If its metes and bounds are not clearly marked, it is because his available verbal markers are themselves elastic, inconstant and imprecise. It applies, he points out, only to “cases and controversies in the constitutional sense” of a nature “consonant with the exercise of the judicial function” and “appropriate for judicial determination.” Each must present a “justiciable controversy” as distinguished from “a difference or dispute of a hypothetical or abstract character .... The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. . . . It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as' distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” The relief is available only for a “concrete case admitting of an immediate and definitive determination of the legal rights of the parties.” Id., at 240, 241. Other sources have stated relevant limitations. The Senate Judiciary Committee report regarded the 1,200 American decisions theretofore rendered on the subject as establishing that “the issue must be real, the question practical and not academic, and the decision must finally settle and determine the controversy.” Indeed the Uniform Act, unlike the Federal Act, expressly declares the discretion of the court to refuse a decree that would not “terminate the uncertainty or controversy giving rise to the proceeding.” In recommending Rule 57 of the Federal Rules of Civil Procedure, in order to provide procedures for the declaratory decree, the Committee noted “A declaration may not be rendered if a special statutory proceeding has been provided for the adjudication of some special type of case . . . .” But when all of the axioms have been exhausted and all words of definition have been spent, the propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power. While the courts should not be reluctant or niggardly in granting this relief in the cases for which it was designed, they must be alert to avoid imposition upon their jurisdiction through obtaining futile or premature interventions, especialy in the field of public law. A maximum of caution is necessary in the type of litigation that we have here, where a ruling is sought that would reach far beyond the particular case. Such differ-enees of opinion or conflicts of interest must be “ripe for determination” as controversies over legal rights. The disagreement must not be nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them. The complainant in this case does not request an adjudication that it has a right to do, or to have, anything in particular. It does not ask a judgment that the Commission is without power to enter any specific order or take any concrete regulatory step. It seeks simply to establish that, as presently conducted, respondent’s carriage of goods between points within as well as without Utah is all interstate commerce. One naturally asks, “So what?” To that ultimate question no answer is sought. A multitude of rights and immunities may be predicated upon the premise that a business consists of interstate commerce. What are the specific ones in controversy? The record is silent and counsel little more articulate. We may surmise that the purpose to be served by a declaratory judgment is ultimately the same as respondent’s explanation of the purposes of the injunction it originally asked, which is “to guard against the possibility that said Commission would attempt to prevent respondent from operating under its certificate from the Interstate Commerce Commission.” (Emphasis supplied.) In this connection, Wycoff Co. v. Public Service Commission, -Utah -, 227 P. 2d 323 (1951), is brought to our attention. From this it appears that respondent and its predecessors in interest long made it a practice to obtain from the Utah Commission certificates to authorize this carriage of film commodities between points in Utah. But the Supreme Court of Utah, in the cited case, sustained the Commission in denying such an application upon a finding that the field already was adequately served. We are also told that the Commission filed a petition in a Utah state court to enjoin respondent from operating between a few specified locations within the State, but that process was never served and nothing in the record tells us what has happened to this action. We may conjecture that respondent fears some form of administrative or judicial action to prohibit its service on routes wholly within the State without the Commission’s leave. What respondent asks is that it win any such case before it is commenced. Even if respondent is engaged solely in interstate commerce, we cannot say that there is nothing whatever that the State may require. Eichholz v. Commission, 306 U. S. 268, 273. A declaratory judgment may be the basis of further relief necessary or proper against the adverse party (28 U. S. C. § 2202). The carrier’s idea seems to be that it can now establish the major premise of an exemption, not as an incident of any present declaration of any specific right or immunity, but to hold in readiness for use should the Commission at any future time attempt to apply any part of a complicated regulatory statute to it. If there is any more definite or contemporaneous purpose to this case, neither this record nor the briefs make it clear to us. We think this for several reasons exceeds any permissible discretionary use of the Federal Declaratory Judgment Act. In the first place, this dispute has not matured to a point where we can see what, if any, concrete controversy will develop. It is much like asking a declaration that the State has no power to enact legislation that may be under consideration but has not yet shaped up into an enactment. If there is any risk of suffering penalty, liability or prosecution, which a declaration would avoid, it is not pointed out to us. If and when the State Commission takes some action that raises an issue of its power, some further declaration would be necessary to any complete relief. The proposed decree cannot end the controversy. Nor is it apparent that the present proceeding would serve a useful purpose if at some future date the State undertakes regulation of respondent. After a sifting of evidence and a finding of facts as they are today, there is no assurance that changes of significance may not take place before the State decides to move. Of course, the remedy is not to be withheld because it necessitates weighing conflicting evidence or deciding issues of fact as well as law. That is the province of courts. Aetna Life Insurance Co. v. Haworth, supra, at 242, and see Perkins v. Elg, 307 U. S. 325; Currin v. Wallace, 306 U. S. 1. But when the request is not for ultimate determination of rights but for preliminary findings and conclusions intended to fortify the litigant against future regulation, it would be a rare case in which the relief should be granted. Cf. Coffman v. Breeze Corporations, Inc., 323 U.S. 316. Even when there is no incipient federal-state conflict, the declaratory judgment procedure will not be used to pre-empt and prejudge issues that are committed for initial decision to an administrative body or special tribunal any more than it will be used as a substitute for statutory methods of review. It would not be tolerable, for example, that declaratory judgments establish that an enterprise is not in interstate commerce in order to forestall proceedings by the National Labor Relations Board, the Interstate Commerce Commission or many agencies that are authorized to try and decide such an issue in the first instance. Cf. Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41; Eccles v. Peoples Bank, 333 U. S. 426. See Colegrove v. Green, 328 U. S. 549. Responsibility for effective functioning of the administrative process cannot be thus transferred from the bodies in which Congress has placed it to the courts. But, as the declaratory proceeding is here invoked, it is even less appropriate because, in addition to foreclosing an administrative body, it is incompatible with a proper federal-state relationship. The carrier, being in some disagreement with the State Commission, rushed into federal court to get a declaration which either is intended in ways not disclosed to tie the Commission’s hands before it can act or it has no purpose at all. Declaratory proceedings in the federal courts against state officials must be decided with regard for the implications of our federal system. State administrative bodies have the initial right to reduce the general policies of state regulatory statutes into concrete orders and the primary right to take evidence and make findings of fact. It is the state courts which have the first and the last word as to the meaning of state statutes and whether a particular order is within the legislative terms of reference so as to make it the action of the State. We have disapproved anticipatory declarations as to state regulatory statutes, even where the case originated in and was entertained by courts of the State affected. Alabama State Federation of Labor v. McAdory, 325 U. S. 450. Anticipatory judgment by a federal court to frustrate action by a state agency is even less tolerable to our federalism. Is the declaration contemplated here to be res judicata, so that the Commission cannot hear evidence and decide any matter for itself? If so, the federal court has virtually lifted the case out of the State Commission before it could be heard. If not, the federal judgment serves no useful purpose as a final determination of rights. The procedures of review usually afford ample protection to a carrier whose federal rights are actually invaded, and there are remedies for threatened irreparable injuries. State courts are bound equally with the federal courts by the Federal Constitution and laws. Ultimate recourse may be had to this Court by certiorari if a state court has allegedly denied a federal right. In this case, as in many actions for declaratory judgment, the realistic position of the parties is reversed. The plaintiff is seeking to establish a defense against a cause of action which the declaratory defendant may assert in the Utah courts. Respondent here has sought to ward off possible action of the petitioners by seeking a declaratory judgment to the effect that he will have a good defense when and if that cause of action is asserted. Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is federal-question jurisdiction in the District Court. If the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in the nature of a defense to a threatened cause of action. Federal courts will not seize litigations from state courts merely because one, normally a defendant, goes to federal court to begin his federal-law defense before the state court begins the case under state law. Tennessee v. Union & Planters’ Bank, 152 U. S. 454; The Fair v. Kohler Die & Specialty Co., 228 U. S. 22; Taylor v. Anderson, 234 U. S. 74. Since this case should be dismissed in any event, it is not necessary to determine whether, on this record, the alleged controversy over an action that may be begun in state court would be maintainable under the head of federal-question jurisdiction. But we advert to doubts upon that subject to indicate the injury that would be necessary if the case clearly rested merely on threatened suit in state court, as, for all we can learn, it may. We conclude that this suit cannot be entertained as one for injunction and should not be continued as one for a declaratory judgment. The judgment below should be reversed and modified to direct that the action be dismissed. Reversed and so ordered. 195 F. 2d 252. 343 U. S. 975. See 28 U. S. C. § 2201. S. Rep. No. 1005, 73d Cong., 2d Sess., p. 6, May 10, 1934; Borchard, Declaratory Judgments (2d ed. 1941), 1043, 1048. Borchard, op. cit., 1042. See, Developments in the Law — Declaratory Judgments, 62 Harv. L. Rev. 787, 802. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Powell delivered the opinion of the Court. The question presented is whether a United States district court may compel the United States Marshals Service to transport state prisoners to the federal courthouse to testify in an action brought under 42 U. S. C. § 1983 by a state prisoner against county officials. I — < In June 1980, Richard Garland brought suit under 42 U. S. C. § 1983 against various Philadelphia County officials in the United States District Court for the Eastern District of Pennsylvania, alleging that he had been beaten and harassed by the defendant deputy sheriffs and prison guards. At the time Garland filed this suit, he was incarcerated in the Philadelphia County jail, but was subsequently transferred to a state facility. The District Court assigned the action to a Magistrate for disposition on the merits. In December 1982, the Magistrate issued writs of habeas corpus ad testificandum to produce five witnesses, including plaintiff Garland. At that time, Garland was in a state correctional facility in Huntingdon, approximately 220 miles from Philadelphia. The other four witnesses were all confined in state facilities over 100 miles from Philadelphia. The orders directed the Wardens of the state facilities to transport inmates from state prison to the county jail nearest the federal courthouse in Philadelphia. The orders then commanded the United States Marshals Service (Marshals) to transport the inmates from that county facility to the federal court and to maintain custody of them during trial. The Marshals unsuccessfully moved for reconsideration of that portion of the order that directed them to transport the state prisoners from the county jail to the federal courthouse and to guard them during trial. On the Marshals’ appeal from this denial, the Court of Appeals for the Third Circuit reversed in part, holding that the All Writs Act did not confer power upon the District Court “to compel non-custodians to bear the expense of [the production of witnesses] simply because they have access to a deeper pocket.” Garland v. Sullivan, 737 F. 2d 1283, 1287 (1984) (emphasis in original). The Court of Appeals did find, however, that the District Court has the power to compel the Marshals to take custody of state prisoners while those prisoners are in the federal courthouse in connection with federal judicial proceedings. Ibid. Finally, the court held that the District Court could order the Marshals to take custody of state prisoners if the trial court made a specific finding that special security risks required that state prisoner-witnesses be in the Marshals’ custody away from the federal courthouse. Id., at 1289. The Commonwealth Bureau of Correction (Commonwealth) petitioned this Court for a writ of certiorari on the question whether a federal court can command the Marshals to share responsibility with state officials for transporting state inmates to the federal courthouse when neither the State nor any state official is a party. Because this case presents a recurrent problem on which the Circuits differ, we granted the writ. 469 U. S. 1206 (1985). We find that there is no statutory authority for a United States district court to command the Marshals to take custody of state prisoners outside the federal courthouse during the normal course of producing state prisoner-witnesses for trial, and accordingly affirm. II The Commonwealth argues that the Marshals have a statutory obligation to obey the lawful orders and writs of the federal courts, 28 U. S. C. § 569(b), and are statutorily authorized to expend funds for the specific purpose of transporting prisoners, § 567. It also contends that these provisions recognize the authority of the district courts to seek assistance from the Marshals. Two Circuits have summarily agreed. Ford v. Allen, 728 F. 2d 1369, 1370 (CA11 1984) (per curiam); Ballard v. Spradley, 557 F. 2d 476, 481 (CA5 1977). Two other Circuits have relied in part on these provisions in imposing the responsibility for transport upon the Marshals. Wiggins v. County of Alameda, 717 F. 2d 466 (CA9 1983), cert. denied sub nom. California Dept. of Corrections v. United States, 465 U. S. 1070 (1984); Ford v. Carballo, 577 F. 2d 404 (CA7 1978). The Court of Appeals for the Third Circuit is the only Circuit to deny a district court authority to compel the Marshals to assist in transporting state prisoner-witnesses to the federal courthouse. Sections 569(b) and 567 merely enumerate obligations of the Marshals. The Marshals must obey the mandates of federal courts and transport prisoners if the court so orders. The courts’ authority to issue such writs, however, must derive from some independent statutory source. We therefore must look to the habeas corpus statute or the All Writs Act to see if they authorize federal courts to order the transportation of state prisoners to the federal courthouse. r-4 HH » — I The Court of Appeals reasoned that the Magistrate’s order amounted to a writ of habeas corpus ad testificandum properly directed only to the custodian, and that there was no basis in the habeas corpus statute for the District Court’s authority to direct a writ ad testificandum to a noncustodian. We agree. Since 1867, the writ of habeas corpus has incorporated the common-law command that the writ “shall be directed to the person in whose custody the party is detained.” Act of Feb. 5, 1867, ch. 28, 14 Stat. 386 (emphasis added). See In re Thaw, 166 F. 71, 74-75 (CA3 1908). It was the custodian who then was to “make return of said writ and bring the party before the judge who granted the writ.” Ibid. Congress preserved this unambiguous directive throughout subsequent revisions, and the current habeas corpus statute states that the writ “shall be directed to the person having custody of the person detained.” 28 U. S. C. §2243. Section 2243 also specifically provides that “the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.” The language of the statute thus expressly commands the custodian to bring his prisoner to the court, but extends this duty to no other. See also Fed. Rule Civ. Proc. 81(a)(2) (“The writ of habeas corpus . . . shall be directed to the person having custody of the person detained”). We find no evidence in the language of §§ 2241 and 2243, in their legislative history, or in the common-law writ ad testificandum to suggest that courts are also empowered to cause third parties who are neither custodians nor parties to the litigation to bear the cost of producing the prisoner in a federal court. We therefore conclude that there is no basis in the habeas corpus statute for a federal court to order the Marshals to transport state prisoners to the federal courthouse. > hH Finally, the Commonwealth argues that the All Writs Act, 28 U. S. C. § 1651, confers authority upon a district court to order the Marshals to transport state prisoners to and from the federal courthouse in connection with federal litigation. It argues that the “deluge of. . . civil rights actions” calls for “creative” use of federal judicial power to alleviate the drain on the States’ fiscs from the transport of inmates to and from federal courthouses. It is true that this Court consistently has construed the All Writs Act to authorize a federal court “to issue such commands ... as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.” United States v. New York Telephone Co., 434 U. S. 159, 172 (1977). This Court also has held that the supplemental powers of the Act are not limited to situations where it is “necessary” to issue the writ or order “in the sense that the court could not otherwise physically discharge its appellate duties.” Adams v. United States ex rel. McCann, 317 U. S. 269, 273 (1942). An examination of the language of the All Writs Act, its legislative history, and our decisions construing it convinces us, however, that the Act does not authorize a district court to order the Marshals to transport state prisoners from state prisons to the federal courthouse in the ordinary course of litigation in federal courts. The All Writs Act originally was codified in § 14 of the Judiciary Act of 1789, 1 Stat. 81-82, which provided that “all the . . . courts of the United States, shall have power to issue writs of scire facias, habeas corpus, and all other writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.” Our early view of the scope of the all writs provision confined it to filling the interstices of federal judicial power when those gaps threatened to thwart the otherwise proper exercise of federal courts’ jurisdiction. McClung v. Silliman, 6 Wheat. 598 (1821); McIntire v. Wood, 7 Cranch 504 (1813). This limitation is especially significant in construing federal courts’ power to issue writs of habeas corpus ad testifican-dum: The Judiciary Act of 1789 codified the ad testificandum writ in the same section as the all writs provision. The original phrase “not specifically provided for by statute” remained in the all writs section until 1948. Although the legislative history is scant, it appears that Congress then merely consolidated various provisions into § 1651 and made “necessary changes in phraseology” without substantive amendment. See H. R. Rep. No. 308, 80th Cong., 1st Sess., A144 (1947); see also id., at 5. The legislative history did, however, state that the new section was “expressive of the construction recently placed upon [the all writs provision] by the Supreme Court in U. S. Alkali Export Assn. [v. United States, 325 U. S. 196 (1945)].” Id., at A145. In United States Alkali, the Court rejected use of the all writs provision to enable the Court to review a lower court’s determination where jurisdiction did not lie under an express statutory provision. Chief Justice Stone wrote: “The writs may not be used as a substitute for an authorized appeal; and where, as here, the statutory scheme permits appellate review of interlocutory orders only on appeal from the final judgment, review by certiorari or other extraordinary writ is not permissible in the face of the plain indication of the legislative purpose to avoid piecemeal reviews.” 325 U. S., at 203. Although Congress dropped the phrase “not specifically provided for by statute” in its 1948 consolidation, we conclude that it apparently intended to leave the all writs provision substantially unchanged. That intention and the favorable reference to United States Alkali convince us that the 1948 changes in phraseology do not mark a congressional expansion of the powers of federal courts to authorize issuance of any “appropriate” writ. Nevertheless, the Commonwealth, relying on United States v. New York Telephone Co., supra, at 171, as well as Harris v. Nelson, 394 U. S. 286, 299 (1969), and Price v. Johnston, 334 U. S. 266, 282 (1948), insists that under the All Writs Act the District Court can order the Marshals to transport state prisoners upon a mere statement that such an order would be “necessary or appropriate.” As summarized in the margin below, these cases are clearly distinguishable and lend little support to the Commonwealth’s argument. The All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling. Although that Act empowers federal courts to fashion extraordinary remedies when the need arises, it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate. We need not categorically rule out reliance on the All Writs Act and the use of Marshals in procuring or safeguarding state prisoner-witnesses in the course of federal litigation. There may be exceptional circumstances in which a district court can show clearly the inadequacy of traditional habeas corpus writs, such as where there are serious security risks. In such circumstances, a district court may find it “necessary or appropriate” for Marshals to transport state prisoners. We therefore leave open the question of the availability of the All Writs Act to authorize such an order where exceptional circumstances require it. V We conclude, at least in the absence of an express finding of exceptional circumstances, that neither a magistrate nor a district court has authority to order the Marshals to transport state prisoners to the federal courthouse to testify in an action brought by a state prisoner under 42 U. S. C. § 1983 against county officials. Accordingly, we affirm the Court of Appeals for the Third Circuit. It is so ordered. The Marshals are within the Executive Branch of the Federal Government. The Marshal for each district is appointed by the President, 28 U. S. C. § 561(a), is subject to the supervision and direction of the Attorney General, see, e. g., §§562, 567, 569(c), 571(a) and (d), and is funded through Department of Justice appropriations, e. g., §567. Judge Becker concurred in the judgment, believing the court to be bound by McClung v. Silliman, 6 Wheat. 598 (1821), and McIntire v. Wood, 7 Cranch 504 (1813). He hoped that this Court would “find that, because statutes can adapt to fit the needs of changing times, the All Writs Act now permits what, in the time of Mclntire and McClung it did not.” 737 F. 2d, at 1292 (footnote omitted). Judge Atkins, sitting by designation from the Southern District of Florida, concurred in part and dissented in part, believing that the Third Circuit could impose a duty on the Marshals to transport state prisoners. Ibid. The propriety of that part of the order commanding the Marshals to take custody of the state prisoners while they are in the federal courthouse is not specifically before us. The Marshals have conceded that they are responsible for the custody of state prisoners in the federal courthouse as witnesses or parties. The habeas corpus statute provides in pertinent part that the writ “shall be directed to the person having custody of the person detained,” and that “the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.” 28 U. S. C. §2243. Carbo v. United States, 364 U. S. 611 (1961), does not support an expansive reading of the power conferred upon federal district courts by the writ of habeas corpus ad testificandum. In Carbo, the Court found that although § 2241 contained an express territorial limitation of “[w]rits of habeas corpus,” 28 U. S. C. § 2241(a), the limitation applied to habeas corpus ad subjiciendum, but not to habeas corpus ad prosequendum. The Commonwealth similarly argues that the provisions in § 2243 that direct the custodian to produce the prisoners in court do not apply to the writ ad testificandum but instead are limited to the Great Writ, habeas corpus ad subjiciendum. Carbo’s expansive reading of the statute was consistent with common-law procedure and requirements applied to the writ ad prosequendum and with the legislative history of § 2241(a). 364 U. S., at 615-618. But this ease involves the writ ad testificandum, which has been confined in its application to the actual custodian of the prisoners from before its initial codification in 1789 to the present. We therefore do not believe that Carbo justifies a more expansive view of the writ of habeas corpus ad testificandum today. The All Writs Act provides in pertinent part: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” In United States v. New York Telephone Co., 484 U. S. 159 (1977), the Court held that a District Court could under the All Writs Act compel a third party, the New York Telephone Company, to assist the Federal Bureau of Investigation in installing devices under a warrant that would register the numbers dialed on certain telephones. In that case the All Writs Act filled a gap in federal statutes by granting the District Court jurisdiction over the only party capable of installing the devices. In the instant case, by contrast, the habeas corpus statute already expressly provides for the issuance of a writ “to the person having custody of the person detained.” In Price v. Johnston, 334 U. S. 266 (1948), the Court held that a Court of Appeals could order a prisoner to be brought before it to argue his own appeal, finding that the All Writs Act was a mechanism to achieve the “rational ends of law. ” Id., at 282. In Price, however, there was no alternative way to bring the prisoner before the court. In the present ease, the traditional writ ad testificandum is sufficient. Similarly, Harris v. Nelson, 394 U. S. 286 (1969), held that the District Court in that case had no alternative means of providing an effective habeas corpus proceeding except by use of an extraordinary writ. New York Telephone, Price, and Harris afforded resort to the All Writs Act to fill statutory interstices. We do not find their reasoning controlling here, where a writ ad testifican- dum directed to the custodian indisputably provides a district court with a means of producing a prisoner-witness. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to resolve a conflict in the Circuits over whether the federal courts in a federal criminal prosecution should recognize a legislative privilege barring the introduction of evidence of the legislative acts of a state legislator charged with taking bribes or otherwise obtaining money unlawfully through exploitation of his official position. 441 U. S. 942 (1979). I Respondent Edgar H. Gillock was indicted on August 12, 1976, in the Western District of Tennessee on five counts of obtaining money under color of official right in violation of 18 U. S. C. § 1951, one count of using an interstate facility to distribute a bribe in violation of 18 U. S. C. § 1952, and one count of participating in an enterprise through a pattern of racketeering activity in violation of 18 U. S. C. § 1962. The indictment charged Gillock, then a Tennessee state senator and practicing attorney, with accepting money as a fee for using his public office to block the extradition of a defendant from Tennessee to Illinois, and for agreeing to introduce in the State General Assembly legislation which would enable four persons to obtain master electricians’ licenses they had been unable to obtain by way of existing examination processes. Before trial, Gillock moved to suppress all evidence relating to his legislative activities. The District Court granted his motion, holding that as a state senator, Gillock had an eviden-tiary privilege cognizable under Rule 501 of the Federal Rules of Evidence. This privilege, deemed by the District Court to be equivalent to that granted Members of both Houses of Congress under the Speech or Debate Clause, Art. I, § 6, cl. 1, was limited to prohibiting the introduction of evidence of Gillock’s legislative acts and his underlying motivations. The coürt stated that the privilege is necessary “to protect the integrity of the [state’s] legislative process by insuring the independence of individual legislators” and “to preserve the constitutional relation between our federal and state governments in our federal system.” The Government appealed the pretrial suppression order to the United States Court of Appeals for the Sixth Circuit, see 18 U. S. C. § 3731, which vacated the order and remanded for additional consideration. 559 F. 2d 1222 (1977). The Court of Appeals noted that although the District Court had expressed its willingness to recognize a legislative privilege, it had not applied the principle to particularizo items of evidence. On remand, the Government submitted a formal offer of proof and requested a ruling on the applicability of the legislative privilege to 15 specifically described items of evidence. The offer first detailed the evidence the Government proposed to introduce at trial in support of the count of the indictment charging Gillock with soliciting money from one Ruth Howard in exchange for using his influence as a state senator to block the extradition of Howard’s brother, James Michael Williams. Williams had been arrested in Tennessee in November 1974, and was being held as a fugitive from Illinois. According to the offer of proof, in January 1975 Howard met in Memphis with her brother’s attorney, John Hundley, who allegedly told her that he had a “friend” who could help her brother. A meeting between Gillock and Howard was arranged by Hund-ley, and Gillock agreed to exercise his influence to block the extradition for a fee. The Government declared its intention to prove that on March 6, 1975, Gillock appeared at Williams’ extradition hearing. Although he denied that he was attending the hearing either as an attorney or in his capacity as a state senator, Gillock reviewed the extradition papers and questioned the hearing officer about the propriety of extradition on a misdemeanor charge. Later that day, Gillock requested an official opinion from the Tennessee Attorney General concerning “Extradition on a Misdemeanor.” In addition, the Government stated it intended to introduce at trial the transcript of a telephone call Gillock made to Howard on March 25, 1975. During that conversation, Gil-lock allegedly advised Howard that he had delayed the extradition proceedings, and could have blocked them entirely, by exerting pressure on the extradition hearing officer who had appeared before Gillock’s senate judiciary committee on a budgetary matter. To corroborate that conversation, the Government indicated it would prove that on March 19, 1975, Gillock attended a meeting of the senate judiciary committee where the same extradition hearing officer who conducted Williams’ extradition hearing presented his department’s budget request. Next, the Government recited the evidence it proposed to introduce showing that Gillock used his influence as a member of the Tennessee State Senate to assist four individuals in obtaining master electricians’ licenses valid in Shelby County, Tenn. According to the offer of proof, the four contacted Gillock in early 1972. Two weeks later, Gillock advised them that he could get legislation enacted by the General Assembly which would provide for reciprocity in licensing. Under his proposal, a person who received a license in another county could be admitted without a test in Shelby County. The prosecution represented it would offer evidence that Gillock fixed a contingent fee of $5,000 per person, to be refunded if the legislation was not passed. The Government also represented that it would offer evidence that Gillock introduced reciprocity legislation in the. senate and that he arranged for the introduction of a similar bill in the house. The Government further proposed to introduce statements made by Gillock on the floor of the senate in support of the bill. After the bill was passed by both branches of the legislature and forwarded to the Governor, several private persons, including union representatives, allegedly met with Gillock and voiced their opposition to the legislation. The Government intended to prove that Gillock replied that he could not financially afford to withdraw the legislation because he had already accepted “fees” for introducing it. Finally, the Government intended to prove that on April 13, 1972, Gillock moved to override the Governor’s veto of the legislation, and stated that it would introduce into evidence any and all statements made by Gillock on the floor of the senate in support of his motion to override. Based on this offer of proof, the District Court granted Gillock’s renewed motion to exclude evidence of his legislative acts under Rule 501. It ruled inadmissible Gillock’s official request for an opinion from the Attorney General regarding extradition and the answer to that request, and Gillock’s statements to Howard that he could exert pressure on the extradition hearing officer to block the extradition because the hearing officer had appeared before Gilloek’s legislative committee. Similarly, the court ruled that all evidence regarding Gillock’s introduction and support of the electricians’ reciprocal licensing bill, his conversation with the private individuals who opposed the legislation^ and the Governor’s veto letter would be inadmissible. The Government again appealed the District. Court’s suppression order. The Court of Appeals by a divided vote held that “the long history and the felt need for protection of legislative speech or debate and the repeated and strong recognition of that history in the cases . . . from the Supreme Court, fully justify our affirming [the District Court] in [its] protection of the privilege in this case.” 587 F. 2d 284, 290 (1978). Turning to the scope of the privilege, the court affirmed the suppression of evidence of Gillock’s request for a formal opinion from the Attorney General, his participation in' the senate judiciary committee, his introduction of the reciprocity legislation, his motion on the floor of the senate to override the Governor’s veto, and all the statements he made on the floor of the senate. The other items of evidence were considered to be insufficiently related to the legislative process to be protected by the privilege. II Gilloek urges that we construct an evidentiary privilege barring the introduction of evidence of legislative acts in federal criminal prosecutions against state legislators. He argues first that a speech or debate type privilege for state legislators in federal criminal cases is an established part of the federal common law and is therefore applicable through Rule 501. Second, he contends that even apart from Rule 501, a legislative speech or debate privilege is compelled by principles of federalism rooted in our constitutional structure. It is clear that were we to recognize an evidentiary privilege similar in scope to the Federal Speech or Debate Clause, much of the evidence at issue here would be inadmissible. Recently, in United States v. Helstoski, 442 U. S. 477, 489 (1979), we reaffirmed our holding in United States v. Brewster, 408 U. S. 501, 525 (1972), that with respect to Members of Congress “[t]he Clause protects 'against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.’ ” Under that standard, evidence of Gillock’s participation in the state senate committee hearings and his votes and speeches on the floor would be privileged and hence inadmissible. The language and legislative history of Rule 501 give no aid to Gillock. The Rule provides in relevant part that "the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” Congress substituted the present language of Rule 501 for the draft proposed by the Advisory Committee of the Judicial Conference of the United States to provide the courts with greater flexibility in developing rules of privilege on a case-by-case basis. Under the Judicial Conference proposed rules submitted to Congress, federal courts would have been permitted to apply only nine specifically enumerated privileges, except as otherwise required by the Constitution or provided by Acts of Congress. See Proposed Federal Rules of Evidence 501-513, H. R. Doc. No. 93-46, pp. 9-19 (1973). Neither the Advisory Committee, the Judicial Conference, nor this Court saw fit, however, to provide the privilege sought by Gillock. Although that fact standing alone would not compel the federal courts to refuse to recognize a privilege omitted from the proposal, it does suggest that the claimed privilege was not thought to be either indelibly ensconced in our common law or an imperative of federalism. Moreover, the House Conference Committee Report on the Federal Rules of Evidence leaves little doubt that Rule 501 requires the application of federal privilege law in criminal cases brought in federal court. H. R. Conf. Rep. No. 93-1597, p. 7 (1974). Cf. Wolfle v. United States, 291 U. S. 7, 13 (1934) (the admissibility of evidence in criminal trials in the federal courts “is to be controlled by common law principles, not by local statute”); Funk v. United States, 290 U. S. 371 (1933). Thus, the fact that there is an evidentiary privilege under the Tennessee Constitution, Art. II, § 13, which Gillock could assert in a criminal prosecution in state court does not compel an analogous privilege in a federal prosecution. Ill Gillock argues that the historical antecedents and policy considerations which inspired the Speech or Debate Clause of the Federal Constitution should lead this Court to recognize a comparable evidentiary privilege for state legislators in federal prosecutions. The important history of the Speech or Debate Clause has been related abundantly in opinions of this Court and need not be repeated. See, e. g., United States v. Helstoski, supra; United States v. Brewster, supra; United States v. Johnson, 383 U. S. 169 (1966). Suffice it to recall that England’s experience with monarchs exerting pressure on members of Parliament by using judicial process to make them more responsive to their wishes led the authors of our Constitution to write an explicit legislative privilege into our organic law. In statutes subject to repeal or in judge-made rules of evidence readily changed by Congress or the judges who made them, the protection would be far less than the legislative privilege created by the Federal Constitution. Our cases, however, have made clear that “[ajlthough the Speech or Debate Clause’s historic roots are in English history, it must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government rather than the English parliamentary system.” United States v. Brewster, 408 U. S., at 508. In deciding whether the principles underlying the federal constitutional speech or debate privilege compel a similar evidentiary privilege on behalf of state legislators, the analysis must look primarily to the American experience, including our structure of federalism which had no counterpart in England. Two interrelated rationales underlie the Speech or Debate Clause: first, the need to avoid intrusion by the Executive or Judiciary into the affairs of a coequal branch, and second, the desire to protect legislative independence. Eastland v. United States Servicemen’s Fund, 421 U. S. 491, 502-503 (1975). Cases considering the Speech or Debate Clause have frequently arisen in the context of a federal criminal prosecution of a Member of Congress and have therefore accented the first rationale. Only recently in such a case, we re-emphasized that a central purpose of the Clause is “to preserve the constitutional structure of separate, coequal, and independent branches of government. The English and American history of the privilege suggests that any lesser standard would risk intrusion by the Executive and the Judiciary into the sphere of protected legislative activities.” United States v. Helstoski, 442 U. S., at 491. Accord, United States v. Johnson, supra, at 180-181. The Framers viewed the speech or debate privilege as fundamental to the system of checks and balances. 8 The Works of Thomas Jefferson 322 (Ford ed. 1904); I The Works of James Wilson 421 (R. McCloskey ed. 1967). The first rationale, resting solely on the separation of powers doctrine, gives no support to the grant of a privilege to state legislators in federal criminal prosecutions. It requires no citation of authorities for the proposition that the Federal Government has limited powers with respect to the states, unlike the unfettered authority which English monarchs exercised over the Parliament. By the same token, however, in those areas where the Constitution grants the Federal Government the power to act, the Supremacy Clause dictates that federal enactments will prevail over competing state exercises of power. Thus, under our federal structure, we do not have the struggles for power between the federal and state systems such as inspired the need for the Speech or Debate Clause as a restraint on the Federal Executive to protect federal legislators. Apart from the separation of powers doctrine, it is also suggested that principles of comity require the extension of a speech or debate type privilege to state legislators in. federal criminal prosecutions. However, as we have noted, federal interference in the state legislative process is not on the same constitutional footing with the interference of one branch of the Federal Government in the affairs of a coequal branch. Baker v. Carr, 369 U. S. 186, 210 (1962). Cf. Dombrowski v. Pfister, 380 U. S. 479, 489-492 (1965) (federal court may enjoin state-court application of a clearly unconstitutional statute). Our opinion in National League of Cities v. Usery, 426 U. S. 833 (1976), is not to the contrary. There, we held that a federal statute regulating the wages of state employees was unconstitutional because it “operate [d] to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions.” Id., at 852. The absence of a judicially created evidentiary privilege for state legislators is not, however, comparable intervention by the Federal Government into essential state functions. First, Gillock’s argument, resting on the Tenth Amendment, has no special force with regard to state legislators; on the rationale advanced, state executive officers and members of the state judiciary would have equally plausible claims that the denial of an evidentiary privilege to them resulted in a direct federal impact on traditional state governmental functions. Moreover, we recognized in National League of Cities that the regulation by Congress under the Commerce Clause of individuals is quite different from. legislation which directly regulates the internal functions of states. Id., at 840-841. Although the lack of an evidentiary privilege for a state legislator might conceivably influence his conduct while in the legislature, it is not in. any sense analogous to the direct regulation imposed by the federal, wage-fixing legislation in National League of Cities. The second rationale underlying the Speech or Debate Clause is the need to insure legislative independence. Gillock relies heavily on Tenney v. Brandhove, 341 U. S. 367 (1951), where this Court was cognizant of the potential for disruption of the state legislative process. The issue there, however, was whether state legislators were immune from civil suits for alleged violations of civil rights under 42 U. S. C. § 1983. The claim was made by a private individual who alleged that a state legislative committee hearing was conducted to prevent him from exercising his First Amendment rights. The Court surveyed the history of the speech or debate privilege from its roots in the British parliamentary experience through its adoption in our own Federal Constitution. In light of these “presuppositions of our political history,” 341 U. S., at 372, the Court stated: “We cannot believe that Congress — itself a staunch advocate of legislative freedom — would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language [of § 1983] before us.” Id., at 376. Accordingly, the Court held that a state legislator’s common-law absolute immunity from civil suit survived the passage of the Civil Rights Act of 1871. Although Tenney reflects this Court’s sensitivity to interference with the functioning of state legislators, we do not read that opinion as broadly as Gillock would have us. First, Tenney was a civil action brought by a private plaintiff to vindicate private rights. Moreover, the cases in this Court which have recognized an immunity from civil suit for state officials have presumed the existence of federal criminal liability as a restraining factor on the conduct of state officials. As recently as O’Shea v. Littleton, 414 U. S. 488 (1974), we stated: “Whatever may be the case with respect to civil liability generally, ... or civil liability for willful corruption-, . . . we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. ... On the contrary, the judicially fashioned doctrine of official immunity does not reach ‘so far as to immunize criminal conduct proscribed by an Act of Congress. . . Gravel v. United States, 408 U. S. 606, 627 (1972).” Id., at 503 (emphasis supplied). Accord, Imbler v. Pachtman, 424 U. S. 409, 429 (1976); Scheuer v. Rhodes, 416 U. S. 232 (1974). Thus, in protecting the independence of state legislators, Tenney and subsequent cases on official immunity have drawn the line at civil actions. We conclude, therefore, that although principles of comity command careful consideration, our cases disclose that where important federal interests are at stake, as in the enforcement of féderal criminal statutes, comity yields. We recognize that denial of a privilege to a state legislator may have some minimal impact on the exercise of his legislative function; however, similar arguments made to support a claim of Executive privilege were found wanting in United States v. Nixon, 418 U. S. 683 (1974), when balanced against the need of enforcing federal criminal statutes. There, the genuine risk of inhibiting candor in the internal exchanges at the highest levels of the Executive Branch was held insufficient to justify denying judicial power to secure all relevant evidence in a criminal proceeding. See also United States v. Burr, 25 F. Cas. 187 (No. 14,694) (CC Va. 1807). Here, we believe that recognition of an evidentiary privilege for state legislators for their legislative acts would impair the legitimate interest of the Federal Government in enforcing its criminal statutes with only speculative benefit to the state legislative process. IV The Federal Speech or Debate Clause, of course, is a limitation on the Federal Executive, but by its terms is confined to federal legislators. The Tennessee Speech or Debate Clause is in terms a limit only on the prosecutorial powers of that State. Congress might have provided that a state legislator prosecuted under federal law should be accorded the same evi-dentiary privileges as a Member of Congress. Alternatively, Congress could have imported the “spirit” of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), into federal criminal law and directed federal courts to apply to a state legislator the same evidentiary privileges available in a prosecution of a similar charge in the courts of the state. But Congress has chosen neither of these courses. In the absence of a constitutional limitation on the power of Congress to make state officials, like all other persons, subject to federal criminal sanctions, we discern no basis in these circumstances for a judicially created limitation that handicaps proof of the relevant facts. Accordingly, the judgment of the Court of Appeals for the Sixth Circuit is Reversed. Compare United States v. DiCarlo, 565 F. 2d 802 (CA1 1977), cert. denied, 435 U. S. 924 (1978), and United States v. Craig, 537 F. 2d 957 (CA7) (en banc), cert. denied, 429 U. S. 999 (1976), with In re Grand Jury Proceedings, 563 F. 2d 577 (CA3 1977). The count based on 18 U. S. C. § 1952 was subsequently dismissed by the District Court. The Government stated that the offer was made on the assumption that the District Court’s prior ruling was correct. The Government, however, explicitly reserved its position that state legislators in federal criminal prosecutions are not entitled to an evidentiary privilege comparable to the Speech or Debate Clause. Gillock would be entitled to request an opinion from the State Attorney General by virtue of his status as a state senator. Only state government officials, not private attorneys, can secure official opinions. Tenn. Code Ann. §8-609 (b)(6) (Supp. 1979). Gilloek makes no claim that state legislators are entitled to the benefits of the Federal Speech or Debate Clause, which by its terms applies only to “Senators and Representatives.” See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 404 (1979). Rule 501 provides in full: “Except as otherwise required by the Constitution of the United States as provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.” We also find it significant that we have not been cited to a single instance in the legislative history of Rule 501 where any Member of Congress manifested interest in providing an evidentiary privilege for state legislators charged in federal court with a violation of a federal criminal statute. This is not to suggest that the privilege law as developed in the states is irrelevant. This Court has taken note of state privilege laws in determining whether to retain them in the federal system. See, e. g., Trammel v. United States, ante, p. 40 (rejection of the antimarital facts privilege). Compare Powell v. McCormack, 395 U. S. 486 (1969) (suit for injunction against individual Members of Congress to require the seating of Representative Adam Clayton Powell barred by the Speech or Debate Clause), with Bond v. Floyd, 385 U. S. 116 (1966) (individual state legislators enjoined from depriving Julian Bond of his seat, in the Georgia Legislature). Despite the frequent invocation of the-federal Speech or Debate Clause in Tenney, the Court has made clear that the holding was grounded on its interpretation of federal common law, not on the Speech or Debate Clause. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S., at 404. Federal prosecutions of state and local officials, including state legislators, using evidence of their official acts are not infrequent. See, e. g., United States v. Rabbitt, 583 F. 2d 1014 (CA8 1978), cert. denied, 439 U. S. 1116 (1979); United States v. Mazzei, 521 F. 2d 639 (CA3), cert. denied, 423 U. S. 1014 (1975); United States v. Homer, 411 F. Supp. 972 (WD Pa. 1976). See also Anderson v. United States, 417 U. S. 211, 214-215 (1974). Of course, even a Member of Congress would not be immune under the federal Speech or Debate Clause from prosecution for the acts which form the basis of the Hobbs Act, 18 U. S. C. § 1951, and RICO, 18 U. S. C. § 1962, charges here. See United States v. Helstoski, 442 U. S. 477 (1979). Cf. Gravel v. United States, 408 U. S. 606, 627 (1972) (“[W]e cannot carry a judicially fashioned privilege so far as to immunize criminal conduct proscribed by an Act of Congress or to frustrate the grand jury’s inquiry into whether publication of these classified documents violated a federal criminal statute”). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Harlan delivered the opinion of the Court. This case calls in question the propriety of a dismissal before trial of the first cause of action in a seaman’s diversity complaint. Dismissal was on the ground that the allegations of the complaint are deficient by reason of the New York Statute of Frauds. The allegations of the complaint, which for present purposes ■ must be taken as true, are in substance as follows: Petitioner, while employed as chief steward on one of the vessels of respondent, United Fruit Company, suffered a thyroid ailment, not attributable to any fault of the respondent, but with respect to which it concededly had a legal duty to provide him with maintenance and cure. (The Osceola, 189 U. S. 158.) Respondent insisted that petitioner undergo treatment at a United States Public Health Service Hospital. Petitioner, however, considering on the basis of past experience that such treatment would prove unsatisfactory and inadequate, notified respondent that he wished to be treated by a private physician who had agreed to take care of him for. $350, which amount petitioner insisted would be payable by the respondent in fulfillment of its obligation for maintenance and cure. Respondent, the complaint continues, declined to accede to this course, but agreed that if petitioner would enter a Public Health Service Hospital (where he would receive free care) it would assume responsibility for all consequences of improper or inadequate treatment. Relying on that undertaking, and being unable himself to defray the cost of private treatment, petitioner underwent treatment at a Public Health Service Hospital. The Public Health Service Hospital and private physician alluded to were both located in New York. Finally, it is alleged that by reason of the improper treatment received at such hospital, petitioner suffered grievous unwonted bodily injury, for which the respondent, because of its undertaking, is liable to the petitioner for damages in the amount of 1250,00o. The District Court dismissed the complaint, considering that the agreement sued on was void under the New York Statute of Frauds, N. Y. Personal Property Law, § 31, par. 2, there being no allegation that such agreement was evidenced by any writing, 166 F. Supp. 571. The Court of Appeals affirmed. 275 F. 2d 500. We brought the case here because it presented novel questions as to the interplay of state and maritime law. 363 U. S. 838. At the outset, we think it clear that the lower courts were correct in regarding the sufficiency of this complaint as depending entirely upon its averments respecting respondent’s alleged agreement with petitioner. Liability here certainly cannot be founded on principles of respon-deat superior. Nor is there anything in the authorities relating to a shipowner’s duty to provide maintenance and cure which suggests that respondent was obliged, as a matter of law, to honor petitioner’s preference for private treatment, or that it was responsible for the quality of petitioner’s treatment at other hands which, for all that appears, may reasonably have been assumed to be well trained and careful. With respect to respondent’s alleged agreed undertaking, as the case comes to us, petitioner, on the one hand, does not deny the contract’s invalidity under the New York Statute of Frauds, if state law controls, nor, on the other hand, can its validity well be doubted, though the alleged agreement was not reduced to writing, if maritime law controls. For it is an established rule of ancient respectability that oral contracts are generally regarded as valid by maritime law. In this posture of things two questions must be decided: First, was this alleged contract a maritime one? Second, if so, was it nevertheless of such a “local” nature that its validity should be judged by state law? I. The boundaries of admiralty jurisdiction over contracts — as opposed to torts or crimes — being conceptual rather than spatial, have always been difficult to draw. Precedent and usage are helpful insofar as they exclude or include certain common types of contract: a contract to repair, Endner v. Greco, 3 F. 411, or to insure a ship, Insurance Co. v. Dunham, 11 Wall. 1, is maritime, but a contract to build a ship is not. People’s Ferry Co. v. Beers, 20 How. 393. Without doubt a contract for hire either of a ship or of the sailors and officers to man her is within the admiralty jurisdiction. 1 Benedict, Admiralty, 366. A suit on a bond covering cargo on general average is governed by admiralty law, Cie Francaise de Navigation v. Bonnasse, 19 F. 2d 777, while an agreement to pay damages for another’s breach of a maritime charter is not, Pacific Surety Co. v. Leatham & Smith T. & W. Co., 151 F. 440. The closest analogy we have found to the case at hand is a contract for hospital services rendered an injured seaman in satisfaction of a shipowner’s liability for maintenance and cure, which has been held to be a maritime contract. Methodist Episcopal Hospital v. Pacific Transport Co., 3 F. 2d 508. The principle by reference to which the cases are supposed to fall on one side of the line or the other is an exceedingly broad one. “The only question is whether the transaction relates to ships and vessels, masters and mariners, as the agents of commerce . . . I Benedict, Admiralty, 131. The Court of Appeals here held: “The contract sued on is not a maritime contract, since it was merely a promise to pay money, on land, if the former seaman should suffer injury at the hands of the United States Public Health Service personnel, on land, in the course df medical treatment. . . . For all that appears in the complaint, it may well be that the contract sued on was allegedly made after the maritime contract of employment of the plaintiff had been terminated. It really makes no difference whether this was so or not. All that remained was the performance by the shipowner of its undisputed obligation to supply maintenance and cure. The shipowner supplied plaintiff with a master’s certificate, which was used by him to obtain admittance as a patient in the United States Public Health Service Hospital. . . . That took care of the obligation to furnish ‘cure.’. . .” With respect to the learned judges below, we think that is too narrow a view of the matter. It can as well be argued that the alleged contract related to and stood in place of a duty created by and known only in admiralty as a kind of fringe benefit to the maritime contract of hire. See Cortes v. Baltimore Insular Line, 287 U. S. 367. The Court of Appeals and respondent are certainly correct in considering that a shipowner's duty to provide maintenance and cure may ordinarily be discharged by the issuing of a master’s certificate carrying admittance to a public hospital, and that a seaman who refuses such a certificate or the free treatment to which it entitles him without just cause, cannot further hold the shipowner to his duty to provide maintenance and cure. Williams v. United States, 133 F. Supp. 319; Luth v. Palmer Shipping Co., 210 F. 2d 224; The Bouker No. 2, 241 F. 831; see Calmar S. S. Corp. v. Taylor, 303 U. S. 525. But without countenancing petitioner’s intemperate aspersions against Public Health Service Hospitals, and rejecting as we have the noncontractual grounds upon which he seeks to predicate liability here, we nevertheless are clear that the duty to afford maintenance and cure is not simply and as a matter of law an obligation to provide for entrance to a public hospital. The cases which respondent cites hold no more than that a seaman who can receive adequate and proper care free of charge at a public hospital may not “deliberately refuse the hospital privilege, and then assert a lien upon his vessel for the increased expense which his. whim or taste has created.” The Bouker No. 2, supra, at 835. Presumably if a seaman refuses to enter a public hospital or, having entered, if he leaves to undergo treatment elsewhere, he may recover the cost of such other treatment upon proof that “proper and adequate” cure was not available at such hospital. Cf. Williams v. United States, Luth v. Palmer Shipping Co., supra. No matter how skeptical one may be that such a burden of proof could be sustained, or that an indigent seaman would be likely to risk losing his rights to free treatment on the chance of sustaining that burden, since we should not exclude that possibility as a matter of law as the Court of Appeals apparently did, it must follow that the contract here alleged should be regarded as an agreement on the part of petitioner to forego a course of treatment which might have involved respondent in some additional expense, in return for respondent’s promise to make petitioner whole for any consequences of what appeared to it at the time as the cheaper alternative. In other words, the consideration for respondent’s alleged promise was petitioner’s good faith forbearance to press what he considered — perhaps erroneously — to be the full extent of his maritime right to maintenance and cure. Compare, American Law Institute, Restatement, Contracts §§ 75, 76. So viewed, we think that the alleged agreement was sufficiently related to peculiarly maritime concerns as not to put it, without more, beyond the pale of admiralty law. This brings us, then, to the remaining, and what we believe is the controlling, question: whether the alleged contract, though maritime, is “maritime and local,” Western Fuel Co. v. Garcia, 257 U. S. 233, 242, in the sense that the application of state law would not disturb the uniformity of maritime law, Southern Pacific Co. v. Jensen, 244 U. S. 205. M 1 — 1 Although the doctrines of the uniformity and supremacy of the maritime law have been vigorously criticized— see Southern Pacific Co. v. Jensen, supra, at 218 (dissenting opinion); Standard Dredging Co. v. Murphy, 319 U. S. 306, 309 — the qualifications and exceptions which this Court has built up to that imperative doctrine have not been considered notably more adequate. See Gilmore and Black, Admiralty, passim; Currie, Federalism and the Admiralty: “The Devil’s Own Mess,” 1960, The Supreme Court Review, 158; The Application of State Survival Statutes in Maritime Causes, 60 Col. L. Rev. 534. Perhaps the most often heard criticism of the supremacy doctrine is this: the fact that maritime law is — in a special sense at least, Romero v. International Terminal Co., 358 U. S. 354 — federal law and therefore supreme by-virtue of Article VI of the Constitution, carries with it the implication that wherever a maritime interest is involved, no matter how slight or marginal, it must displace a local interest, no matter how pressing and significant. But the process is surely rather one of accommodation, entirely familiar in many areas of overlapping state and federal concern, or a process somewhat analogous to the normal conflict of laws situation where two sovereignties assert divergent interests in a transaction as to which both have some concern. Surely the claim of federal supremacy is adequately served by the availability of a federal forum in the first instance and of review in this Court to provide assurance that the federal interest is correctly assessed and accorded due weight. Thus, for instance, it blinks at reality to assert that because a longshoreman, living ashore and employed ashore by shoreside employers, performs seaman’s work, the State with these contacts must lose all concern for the longshoreman’s status and well-being. In allowing state wrongful death statutes, The Tungus v. Skovgaard, 358 U. S. 588; The Hamilton, 207 U. S. 398, and state survival of actions statutes, Just v. Chambers, 312 U. S. 383, respectively, to grant and to preserve a cause of action based ultimately on a wrong committed within, the admiralty jurisdiction and defined by admiralty law, this Court has attempted an accommodation between a liability dependent primarily upon the breach of a maritime duty and state rules governing the extent of recovery for such breach. Since the chance of death foreclosing recovery is necessarily a fortuitous matter, and since the recovery afforded the disabled victim of an accident need be no less than that afforded to his family should he die, the intrusion of these state remedial systems need not bring with it any undesirable disuniformity in the scheme of maritime law. Altogether analogous reasoning was used by Mr. Justice Brandéis in Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, where it was held that a New York court could properly compel arbitration under the arbitration clause of a maritime contract. It was there reasoned that since such clauses are valid in admiralty and their breach gives rise to an action for damages, to compel arbitration is really to do no more than substitute a different and more effective remedy for that available in admiralty. The line of cases descended from the early precedent of Cooley v. Board of Wardens, 12 How. 299, and most recently added to by Huron Portland Cement v. Detroit, 362 U. S. 440; see also Kelly v. Washington, 302 U. S. 1, exemplify but another variation of this process of accommodation. In the Huron case we allowed the City of Detroit to impose the requirements of its smoke control regulations on vessels coming to the city, even though they had measured up to federally imposed standards as to ship’s boilers and equipment. There the matter was put thus: “. . . The thrust of the federal inspection laws [with which petitioner had complied] is clearly limited to affording protection from the perils of maritime navigation. . . . “By contrast, the sole aim of the Detroit ordinance is the elimination of air pollution to protect the health and enhance the cleanliness of the local community. . . . “Congressional recognition that the problem of air pollution is peculiarly a matter of state and local concern is manifest in . . . legislation.” 362 U. S., at 445-446. Turning to the present case, we think that several considerations point to an accommodation favoring the application of maritime law. It must be remembered that we are dealing here with a contract, and therefore with obligations, by hypothesis, voluntarily undertaken, and not, as in the case of tort liability or public regulations, obligations imposed simply by virtue of the authority of the State or Federal Government. This fact in itself creates some presumption in favor of applying that law tending toward the validation of the alleged contract. Pritchard v. Norton, 106 U. S. 124; Ehrenzweig, Contracts in the Conflict of Laws, Part One: Validity, 59 Col. L. Rev. 973. As we have already said, it is difficult to deny the essentially maritime character of this contract without either indulging in fine-spun distinctions in terms of what the transaction was really about, or simply denying the alleged agreement that characterization by reason of its novelty. Considering that sailors of any nationality may join a ship in any port, and that it is the clear duty of the ship to put into the first available port if this be necessary to provide prompt and adequate maintenance and cure to a seaman who falls ill during the voyage, The Iroquois, 194 U. S. 240, it seems to us that this is such a contract as may well have been made anywhere in the world, and that the validity of it should be judged by one law wherever it was made. On the other hand we are hard put to perceive how this contract was “peculiarly a matter of state and local concern,” Huron Portland Cement v. Detroit, supra, unless it be New York’s interest in not lending her courts to the accomplishment of fraud, something which appears to us insufficient to overcome the countervailing considerations.' Finally, since the effect of the application of New York law here would be to invalidate the contract, this case can hardly be analogized to cases such as Red Cross Line v. Atlantic Fruit, or Just v. Chambers, supra, where state law had the effect of supplementing the remedies available in admiralty for the vindication of maritime rights. Nor is Wilburn Boat Co. v. Fireman’s Ins. Co., 348 U. S. 310, apposite. The application of state law in that case was justified by the Court on the basis of a lack of any provision of maritime law governing the matter there presented. A concurring opinion, id., at 321, and some commentators have preferred to refer the decision to the absurdity of applying maritime law to a contract of insurance on a houseboat established in the waters of a small artificial lake between Texas and Oklahoma. See Gilmore and Black, Admiralty 44-45. Needless to say the situation presented here has a more genuinely salty flavor than that. In sum, were contracts of the kind alleged in this complaint known to be a normal phenomenon in maritime affairs, we think that there would be little room for argument in favor of allowing local law to control their validity. A different conclusion should not be reached either because such a contract may be thought to be a rarity, or because of any suspicion that this complaint may have been contrived to serve ulterior purposes. Cf. 275 F. 2d, at 501; 166 F. Supp., at 573-574, note 1, supra. Without remotely intimating any view upon the merits of petitioner’s claim, we conclude that it was error to apply the New York Statute of Frauds to bar proof of the agreement alleged in the complaint. Reversed. Apparently any cause of action against the United States arising out of the alleged negligence of its agents in treating petitioner was barred by the running of a shorter statute of limitations than is applicable to the contract alleged .here. Compare 28 U. S. C. § 2401 (b) with New York Civil Practice Act, § 48. New York Personal Property Law, § 31, par. 2, provides: “Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the person to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking; “2. Is a special promise to answer for the debt, default or miscarriage of another person.” A second cause of action for maintenance and cure was subsequently discontinued by petitioner, 275 F. 2d, at 502. Although the question has not often been litigated, Union Fish Co. v. Erickson, 248 U. S. 308; see United States Fidelity & Guaranty Co. v. American-Hawaiian S. S. Co., 280 F. 1023; Hastorf v. Long-W. G. Broadhurst Co., 239 F. 852; Quirk v. Clinton, 20 Fed. Cas. No. 11,518; Northern Star S. S. Co. v. Kansas Milling Co., 75 F. Supp. 534, it is well accepted that maritime contracts do not as a generality depend on writing for their validity. As Judge Hough, one of the most distinguished of the federal admiralty judges, once said: “. . . [This] failure to stress force of custom, in maritime matters, is found in Union Fish Co. v. Erickson [supra], where with obvious correctness the California statute of frauds was not permitted to defeat a shipmaster’s libel for wrongful discharge from an engagement for more than one year. . . . [T]he ground of decision should have been the simple one that such engagements, orally made, were as old as the history of marine customs, had passed into the maritime law of the United States, and would be recognized and enforced by the courts of the nation, — so that what California said on the subject (if anything) was merely immaterial.” Hough, Admiralty Jurisdiction— Of Late Years, 37 Harv. L. Rev. 529, at 537. Writing of a different sort of contract, an equally distinguished British admiralty judge has said that “. . . it is common practice for commercial men to assume very extensive financial obligations on the nod of a head or the initialing of a slip, and many binding chartering engagements are no doubt daily concluded in an informal manner..,.” Soc. Portuguesa de Navios Tanques, Ltd. v. Hualfslsk Polaris A/S, [1952] 1 Lloyd’s List Reports 73, 74 (per McNair, J.), in which opinion he is confirmed by Kent, 3 Commentaries 159-160 (1828 ed.), and the French authority, Pothier, Maritime Contracts 10 (Cushing trans.). True, a seaman’s contract of hire, his articles, have long been required to be in writing by statutes of the various maritime nations, among them one of the first • ^atutes passed by our Congress, 1 Stat. 131 (1790). Compare 2 Geo. II, c. 36 (1729). But this rule was clearly instituted for the protection of the seaman, Curtis, Merchant Seamen 37, and in no way assumes the invalidity of such contracts in the absence of writing. In our law the seaman who ships without articles can recover the highest wages paid at the port of embarcation, as well as subjecting the master who took him. on board to penalties, 46 U. S. C. §§564, 578; Norris, The Law of Seamen, §§ 91, 119. An Ordonnance of Louis XIV declares that if the seaman’s contract is not in writing, the seaman’s oath as to its provisions must be credited, Pothier, supra, at 100, while Lord Tenterden, Merchant Ships and Seamen 476, expressly states that an oral contract of hire is not invalid but only results in a penalty against the master. The Union Fish case, supra, no more than exemplifies the enforceability of an oral maritime contract of hire. Benedict goes on to quote from an anonymous commentary on the Mediaeval Statutes of Culm, one of the early sources of maritime law, that anything pertaining to navigation or seamen is to be considered a part of the maritime law. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Black delivered the opinion of the Court. Under employment practices in the United States, employers have sometimes limited work opportunities to members of unions, sometimes to non-union members, and at other times have employed and kept their workers without regard to whether they were or were not members of a union. Employers are commanded to follow this latter employment practice in the states of North Carolina and Nebraska. A North Carolina statute and a Nebraska constitutional amendment provide that no person in those states shall be denied an opportunity to obtain or retain employment because he is or is not a member of a labor organization. To enforce this policy North Carolina and Nebraska employers are also forbidden to enter into contracts or agreements obligating themselves to exclude persons from employment because they are or are not labor union members. These state laws were given timely challenge in North Carolina and Nebraska courts on the ground that insofar as they attempt to protect non-union members from discrimination, the laws are in violation of rights guaranteed employers, unions, and their members by the United States Constitution. The state laws were challenged as violations of the right of freedom of speech, of assembly and of petition guaranteed unions and their members by “the First Amendment and protected against invasion by the State under the Fourteenth Amendment.” It was further contended that the state laws impaired the obligations of existing contracts in violation of Art. I, § 10, of the United States Constitution and deprived the appellant unions and employers of equal protection and due process of law guaranteed against state invasion by the Fourteenth Amendment. All of these contentions were rejected by the State Supreme Courts and the cases are here on appeal under § 237 of the Judicial Code, 28 U. S. C. § 344 (now 28 U. S. C. § 1257). The substantial identity of the questions raised in the two cases prompted us to set them for argument together and for the same reason we now consider the cases in a single opinion. First. It is contended that these state laws abridge the freedom of speech and the opportunities of unions and their members “peaceably to assemble, and to petition the Government for a redress of grievances.” Under the state policy adopted by these laws, employers must, other considerations being equal, give equal opportunities for remunerative work to union and non-union members without discrimination against either. In order to achieve this objective of equal opportunity for the two groups, employers are forbidden to make contracts which would obligate them to hire or keep none but union members. Nothing in the language of the laws indicates a purpose to prohibit speech, assembly, or petition. Precisely what these state laws do is to forbid employers acting alone or in concert with labor organizations deliberately to restrict employment to none but union members. It is difficult to see how enforcement of this state policy could infringe the freedom of speech of anyone, or deny to anyone the right to assemble or to petition for a redress of grievances. And appellants do not contend that the laws expressly forbid the full exercise of those rights by unions or union members. Their contention is that these state laws indirectly infringe their constitutional rights of speech, assembly, and petition. While the basis of this contention is not entirely clear, it seems to rest on this line of reasoning: The right of unions and union members to demand that no non-union members work along with union members is “indispensable to the right of self-organization and the association of workers into unions”; without a right of union members to refuse to work with non-union members, there are “no means of eliminating the competition of the non-union worker”; since, the reasoning continues, a “closed shop” is indispensable to achievement of sufficient union membership to put unions and employers on a full equality for collective bargaining, a closed shop is consequently “an indispensable concomitant” of “the right of employees to assemble into and associate together through labor organizations . . . .” Justification for such an expansive construction of the right to speak, assemble and petition is then rested in part on appellants’ assertion “that the right to work as a non-unionist is in no way equivalent to or the parallel of the right to work as a union member; that there exists no constitutional right to work as a non-unionist on the one hand while the right to maintain employment free from discrimination because of union membership is constitutionally protected.” Cf. Wallace Corporation v. Labor Board, 323 U. S. 248. We deem it unnecessary to elaborate the numerous reasons for our rejection of this contention of appellants. Nor need we appraise or analyze with particularity the rather startling ideas suggested to support some of the premises on which appellants’ conclusions rest. There cannot be wrung from a constitutional right of workers to assemble to discuss improvement of their own working standards, a further constitutional right to drive from remunerative employment all other persons who will not or can not participate in union assemblies. The constitutional right of workers to assemble, to discuss and formulate plans for furthering their own self interest in jobs cannot be construed as a constitutional guarantee that none shall get and hold jobs except those who will join in the assembly or will agree to abide by the assembly’s plans. For where conduct affects the interests of other individuals and the general public, the legality of that conduct must be measured by whether the conduct conforms to valid law, even though the conduct is engaged in pursuant to plans of an assembly. Second. There is a suggestion though not elaborated in briefs that these state laws conflict with Art. I, § 10, of the United States Constitution, insofar as they impair the obligation of contracts made prior to their enactment. That this contention is without merit is now too clearly established to require discussion. See Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, 436-439, and cases there cited. And also Veix v. Sixth Ward Bldg. & Loan Assn., 310 U. S. 32, 38; East New York Savings Bank v. Hahn, 326 U. S. 230, 232. Third. It is contended that the North Carolina and Nebraska laws deny unions and their members equal protection of the laws and thus offend the equal protection clause of the Fourteenth Amendment. Because the outlawed contracts are a useful incentive to the growth of union membership, it is said that these laws weaken the bargaining power of unions and correspondingly strengthen the power of employers. This may be true. But there are other matters to be considered. The state laws also make it impossible for an employer to make contracts with company unions which obligate the employer to refuse jobs to union members. In this respect, these state laws protect the employment opportunities of members of independent unions. See Wallace Corporation v. Labor Board, supra. This circumstance alone, without regard to others that need not be mentioned, is sufficient to support the state laws against a charge that they deny equal protection to unions as against employers and non-union workers. It is also argued that the state laws do not provide protection for union members equal to that provided for non-union members. But in identical language these state laws forbid employers to discriminate against union and non-union members. Nebraska and North Carolina thus command equal employment opportunities for both groups of workers. It is precisely because these state laws command equal opportunities for both groups that appellants argue that the constitutionally protected rights of assembly and due process have been violated. For the constitutional protections surrounding these rights are relied on by appellants to support a contention that the Federal Constitution guarantees greater employment rights to union members than to non-union members. This claim of appellants is itself a refutation of the contention that the Nebraska and North Carolina laws fail to afford protection to union members equal to the protection afforded non-union workers. Fourth. It is contended that these state laws deprive appellants of their liberty without due process of law in violation of the Fourteenth Amendment. Appellants argue that the laws are specifically designed to deprive all persons within the two states of “liberty” (1) to refuse to hire or retain any person in employment because he is or is not a union member, and (2) to make a contract or agreement to engage in such employment discrimination against union or non-union members. Much of appellants’ argument here seeks to establish that due process of law is denied employees and union men by that part of these state laws that forbids them to make contracts with the employer obligating him to refuse to hire or retain non-union workers. But that part of these laws does no more than provide a method to aid enforcement of the heart of the laws, namely, their command that employers must not discriminate against either union or non-union members because they are such. If the states have constitutional power to ban such discrimination by law, they also have power to ban contracts which if performed would bring about the prohibited discrimination. Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 570, 571. Many cases are cited by appellants in which this Court has said that in some instances the due process clause protects the liberty of persons to make contracts. But none of these cases, even those according the broadest constitutional protection to the making of contracts, ever went so far as to indicate that the due process clause bars a state from prohibiting contracts to engage in conduct banned by a valid state law. So here, if the provisions in the state laws against employer discrimination are valid, it follows that the contract prohibition also is valid. Bayside Fish Flour Co. v. Gentry, 297 U. S. 422, 427. And see Sage v. Hampe, 235 U. S. 99, 104-105. We therefore turn to the decisive question under the due process contention, which is: Does the due process clause forbid a state to pass laws clearly designed to safeguard the opportunity of non-union workers to get and hold jobs, free from discrimination against them because they are non-union workers? There was a period in which labor union members who wanted to get and hold jobs were the victims of widespread employer discrimination practices. Contracts between employers and their employees were used by employers to accomplish this anti-union employment discrimination. Before hiring workers, employers required them to sign agreements stating that the workers were not and would not become labor union members. Such anti-union practices were so obnoxious to workers that they gave these required agreements the name of “yellow dog contracts.” This hostility of workers also prompted passage of state and federal laws to ban employer discrimination against union members and to outlaw yellow dog contracts. In 1907 this Court in Adair v. United States, 208 U. S. 161, considered the federal law which prohibited discrimination against union workers. Adair, an agent of the Louisville & Nashville Railroad Company, had been indicted and convicted for having discharged Coppage, an employee of the railroad, because Coppage was a member of the Order of Locomotive Firemen. This Court there held, over the dissents of Justices McKenna and Holmes, that the railroad, because of the due process clause of the' Fifth Amendment, had a constitutional right to discriminate against union members and could therefore do so through use of yellow dog contracts. The chief reliance for this holding was Lochner v. New York, 198 U. S. 45, which had invalidated a New York law prescribing maximum hours for work in bakeries. This Court had found support for its Lochner holding in what had been said in Allgeyer v. Louisiana, 165 U. S. 578, a case on which appellants here strongly rely. There were strong dissents in the Adair and Lochner cases. In 1914 this Court reaffirmed the principles of the Adair case in Coppage v. Kansas, 236 U. S. 1, again over strong dissents, and held that a Kansas statute outlawing yellow dog contracts denied employers and employees a liberty to fix terms of employment. For this reason the law was held invalid under the due process clause. The Allgeyer-Lochner-Adair-Coppage constitutional doctrine was for some years followed by this Court. It was used to strike down laws fixing minimum wages and maximum hours in employment, laws fixing prices, and laws regulating business activities. See cases cited in Olsen v. Nebraska, 313 U. S. 236, 244-246, and Osborn v. Ozlin, 310 U. S. 53, 66-67. And the same constitutional philosophy was faithfully adhered to in Adams v. Tanner, 244 U. S. 590, a case strongly pressed upon us by appellants. In Adams v. Tanner, this Court with four justices dissenting struck down a state law absolutely prohibiting maintenance of private employment agencies. The majority found that such businesses were highly beneficial to the public and upon this conclusion held that the state was without power to proscribe them. Our holding and opinion in Olsen v. Nebraska, supra, clearly, undermined Adams v. Tanner. Appellants also rely heavily on certain language used in this Court’s opinion in Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522. In that case the Court invalidated a state law which in part provided a method for a state agency to fix wages and hours. See Wolff Co. v. Industrial Court, 267 U. S. 552, 565. In invalidating this part of the state act, this Court construed the due process clause as forbidding legislation to fix hours and wages, or to fix prices of products. The Court also relied on a distinction between businesses according to whether they were or were not “clothed with a public interest.” This latter distinction was rejected in Nebbia v. New York, 291 U. S. 502. That the due process clause does not ban legislative power to fix prices, wages and hours as was assumed in the Wolff case, was settled as to price fixing in the Nebbia and Olsen cases. That wages and hours can be fixed by law is no longer doubted since West Coast Hotel Co. v. Parrish, 300 U. S. 379; United States v. Darby, 312 U. S. 100, 125; Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 187. This Court beginning at least as early as 1934, when the Nebbia case was decided, has steadily rejected the due process philosophy enunciated in the Adair-Coppage line of cases. In doing so it has consciously returned closer and closer to the earlier constitutional principle that states have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law. See Nebbia v. New York, supra at 523-524, and West Coast Hotel Co. v. Parrish, supra at 392-395, and cases cited. Under this constitutional doctrine the due process clause is no longer to be so broadly construed that the Congress and state legislatures are put in a strait jacket when they attempt to suppress business and industrial conditions which they regard as offensive to the public welfare. Appellants now ask us to return, at least in part, to the due process philosophy that has been deliberately discarded. Claiming that the Federal Constitution itself affords protection for union members against discrimination, they nevertheless assert that the same Constitution forbids a state from providing the same protection for non-union members. Just as we have held that the due process clause erects no obstacle to block legislative protection of union members, we now hold that legislative protection can be afforded non-union workers. Affirmed. [For concurring opinion of Mr. Justice Frankfurter, see post, p. 542.] [For concurring opinion of Mr. Justice Rutledge, joined by Mr. Justice Murphy insofar as it applies to Nos. 34 and 47, see post, p. 557.] Section 2 of Chapter 328 of the North Carolina Session Laws, enacted in 1947, reads as follows: “Any agreement or combination between any employer and any labor union or labor organization whereby persons not members of such union or organization shall be denied the right to work for said employer, or whereby such membership is made a condition of employment or continuation of employment by such employer, or whereby any such union or organization acquires an employment monopoly in any enterprise, is hereby declared to be against the public policy and an illegal combination or conspiracy in restraint of trade or commerce in the State of North Carolina.” Nebraska in 1946 adopted a constitutional amendment, Art. XV, § 13 of which reads as follows: “No person shall be denied employment because of membership in or affiliation with, or resignation or expulsion from a labor organ-Ration or because of refusal to join or affiliate with a labor organization; nor shall any individual or corporation or association of any kind enter into any contract, written or oral, to exclude persons from employment because of membership in or nonmembership in a labor organization.” Shops that refuse to employ any but union members are sometimes designated as “closed shops,” sometimes as “union shops.” Contracts which obligate an employer to employ none but union members are sometimes designated as union security agreements, closed shop contracts or union shop contracts. There is also much dispute as to the exact meaning of the term “open shop.” See Encyclopedia of Social Sciences, Yol. 3 (1930), pp. 568-569. There is such an important difference in emphasis between these different labels that we think it better to avoid use of any of them in this opinion. The Nebraska constitutional amendment was challenged in an action for equitable relief and for a declaratory judgment. A substantial basis of the complaint was that employers had refused to comply with the request of unions to discharge certain employees who had failed to retain union membership. In North Carolina, criminal proceedings were instituted against the appellants charging that an agreement made unlawful by the statute had been entered into by the appellant employer and the other appellants, who are officers and agents of labor unions affiliated with the American Federation of Labor. State v. Whitaker, 228 N. C. 352, 45 S. E. 2d 860; Lincoln Federal Labor Union No. 19129 v. Northwestern Iron & Metal Co., 149 Neb. 507, 31 N. W. 2d 477. See also American Federation of Labor v. American Sash & Door Co., 67 Ariz. 20, 189 P. 2d 912. An appeal in this latter case was also argued along with the two cases considered in this opinion. We have treated the Arizona case in a separate opinion, post, p. 538, because the challenged Arizona amendment presents a question not raised in the Nebraska or North Carolina laws. This contention rests on the premise that the Fourteenth Amendment makes the prohibitions and guarantees of the First Amendment applicable to state action. See West Virginia v. Barnette, 319 U. S. 624, 639. The pertinent language of the First Amendment is “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Other parts of the state statute related to matters other than wages, prices, and the making of contracts of employment. Considerations involved in the constitutional validity of those other parts of the statute are not relevant here. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

G

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Douglas delivered the opinion of the Court. These cases, here on appeal from the Wisconsin Supreme Court, 28 U. S. C. § 344 (a), 43 Stat. 937, 45 Stat. 54, present the question whether a certification of a union by the Wisconsin Employment Relations Board, Wis. Stats. 1947, ch. Ill, as the collective bargaining representative of the employees of appellant company, conflicts with the National Labor Relations Act, 49 Stat. 449, 29 U. S. C. §§ 151 et seq. Prior to 1945 the appellant company recognized the appellant union as the collective bargaining representative of its plant and traffic department employees. The company and the union entered into a collective bargaining agreement which by its terms was to continue from year to year unless terminated by either party on a specified notice. At a time when certain provisions of that agreement were being renegotiated a rival union, the Telephone Guild, filed a petition with the National Board asking that it certify the collective bargaining representative of these employees. Before the National Board acted, the Guild withdrew its petition and filed a petition with the Wisconsin Board seeking the same relief. The Wisconsin Board held a hearing and directed that separate elections be held among the employees in the plant, traffic, and office departments of the company to determine whether they desired to be grouped in a single unit or in departmental units and what representative, if any, they desired to elect. After the election the Wisconsin Board certified that the employees in the plant and traffic departments had elected to combine in a single bargaining unit and had chosen the Guild as their collective bargaining representative, and that the employees in the office department had elected to constitute themselves as a separate unit and had chosen not to have any collective bargaining representative. Each appellant brought an action in the Wisconsin courts to have the certification set aside. The Circuit Court, relying on Bethlehem Steel Co. v. New York Labor Relations Board, 330 U. S. 767, held that the Wisconsin Board was without jurisdiction to issue the certification. The Supreme Court of Wisconsin reversed. 251 Wis. 583, 30 N. W. 2d 241. First. We are met at the outset with a contention that the certification of the Wisconsin Board which has been sustained by the Wisconsin Supreme Court is not a “final judgment” within the meaning of § 237 (a) of the Judicial Code, 28 U. S. C. § 344. The argument is that under Wisconsin law the certification is no more than a report on the results of an investigation made known to the parties for such use as they may desire, that nothing can be done by any state agency to enforce observance of the certification, that the company cannot be required to bargain with the certified union until and unless an unfair practice charge is lodged against it, and that in such proceeding all the issues involved in the certification proceeding can be relitigated. If that contention is correct, the case is of course not ripe for the intervention of the federal judicial power. See Rochester Telephone Corp. v. United States, 307 U. S. 125, 130-131 and cases cited. But it has not been shown that the Wisconsin law gives such slight force to the certification. The statute provides that the representative chosen by the employees shall be the exclusive one for purposes of collective bargaining. § 111.05 (1). Provision is made for the board to take a secret ballot of the employees and to certify the results thereof, whenever a question arises concerning the representation of employees in a collective bargaining unit. § 111.05 (3). And the statute contains the following direction: “The board’s certification of the results of any election shall be conclusive as to the findings in-eluded therein unless reviewed in the same manner as provided by subsection (8) of section 111.07 for review of orders of the board.” § 111.05 (3). The certification in these cases has been reviewed and sustained by the highest court of Wisconsin. While that certification is not irrevocable for all time, it fixes a status to which Wisconsin provides a sanction. Eor it is an unfair labor practice for an employer to refuse to bargain with the representative of a majority of the employees. § 111.06 (d). And since § 111.05 (3) makes the certification, subject to judicial review, “conclusive as to the findings included therein,” it would seem that the certification cannot be collaterally attacked in that proceeding or heard de novo. We are pointed to no Wisconsin authority to the effect that it can be. On this phase of the case we are, indeed, referred to only one Wisconsin authority and that is United R. & W. D. S. E. v. Wisconsin Board, 245 Wis. 636, 15 N. W. 2d 844. But that case merely held that an order of the Wisconsin Board that a referendum of employees by secret ballot be held to determine whether an “all union” agreement was desired was not reviewable. It did not deal with a certificate which was in fact reviewed and sustained by the same court as in the present cases. It is true that in the opinion below, the Wisconsin Supreme Court said that the “mere fact-finding procedure” of the Wisconsin Board in ascertaining the facts, in ordering an election, and in certifying the result “constitutes action in merely its ministerial capacity.” 251 Wis. at 592, 30 N. W. 2d at 245. But that comment was directed to the lack of discretion which the state statute had left the Wisconsin Board. It had no relevance to the effect of the certification under Wisconsin law. While the Wisconsin Employment Relations Board seems readier than some to reexamine the status of a bargaining representative on the ground that it has lost the support of a majority, it nevertheless appears to be Wisconsin law that a certification is binding upon an employer so long as it stands. We assumed in Allegheny Ludlum Steel Corp. v. Kelley, 330 U. S. 767, that the certification of a collective bargaining representative, sustained by the highest court of the state, was a final judgment, although it did not of itself command action but like the certification here was enforcible in law only by another proceeding. We think that is the correct view. The fact that Wisconsin’s certification was not in the form of a command is immaterial. See American Federation of Labor v. Labor Board, 308 U. S. 401, 408. It was not an abstract determination of status. Nor was it merely an interim adjudication in an uncompleted administrative process. It established legal rights and relationships. It told the employer, subject to judicial review, with whom he could not refuse to negotiate without risk of sanctions. The character of the certification was therefore such as to make it reviewable under the appropriate standards for exercise of the federal judicial power. Second. The Wisconsin Supreme Court concluded that the Wisconsin Board could exercise jurisdiction here until and unless the National Board undertook to determine the appropriate bargaining representative or unit of representation of these employees. That view was urged on us in the like cases coming here under a New York statute. In Bethlehem Steel Co. v. New York Labor Relations Board, supra, at 776, we rejected that argument, saying: “The State argues for a rule that would enable it to act until the federal board had acted in the same case. But we do not think that a case by case test of federal supremacy is permissible here.” We went on to point out that the National Board had jurisdiction of the industry in which those particular employers were engaged and had asserted control of their labor relations in general. Both the state and the federal statutes had laid hold of the same relationship and had provided different standards for its regulation. Since the employers in question were subject to regulation by the National Board, we thought the situation too fraught with potential conflict to permit the intrusion of the state agency, even though the National Board had not acted in the particular cases before us. Those considerations control the present cases. This employer is concededly engaged in interstate commerce; and the industry is one over which the National Board has consistently exercised jurisdiction. The Wisconsin Act provides that a majority of employees in a single craft, division, department or plant of an employer may elect to constitute that group a separate bargaining unit. § 111.02 (6). The federal act leaves that matter to the discretion of the board. When under those circumstances the state board puts its imprimatur on a particular group as the collective bargaining agent of employees, it freezes into a pattern that which the federal act has left fluid. In practical effect the true measure of conflict between the state and federal scheme of regulation may not be found only in the collision between the formal orders that the two boards may issue. We know that administrative practice also disposes of cases in which, no order has been entered. Disposition of controversies on an administrative as distinguished from a formal basis will often reflect the attitudes of the National Board which have not been reduced to orders in those specific cases. A certification by a state board under a different or conflicting theory of representation may therefore be as readily disruptive of the practice under the federal act as if the orders of the two boards made a head-on collision. These are the very real potentials of conflict which lead us to allow supremacy to the federal scheme even though it has not yet been applied in any formal way to this particular employer. The problem of employee representation is a sensitive and delicate one in industrial relations. The uncertainty as to which board is master and how long it will remain such can be as disruptive of peace between various industrial factions as actual competition between two boards for supremacy. We are satisfied with the wisdom of the policy underlying the Bethlehem case and adhere to it. The result we have reached is not changed by the Labor Management Relations Act of 1947, 61 Stat. 136, 29 U. S. C. Supp. I, §§ 141 et seq. That Act grants the National Board authority under specified conditions to cede its jurisdiction to a state agency. But it does not appear that there has been any cession of jurisdiction to Wisconsin by the National Board in representation proceedings. Reversed. That review extends to administrative decisions affecting legal rights, duties, and privileges whether affirmative or negative in form, § 227.15, and is allowed any person aggrieved and directly affected by the administrative decision. § 227.16. Section 111.05 (4) provides “The fact that one election has been held shall not prevent the holding of another election among the same group of employes, provided that it appears to the board that sufficient reason therefor exists.” Section 111.06(d) also provides that where an employer files with the board a petition requesting a determination as to majority representation “he shall not be deemed to have refused to bargain until an election has been held and the result thereof has been certified to him by the board.” But we are pointed to no authority holding that where a certification has already been made, a recertification can be demanded. Section 111.05 (3), indeed, makes the certification “conclusive.” See § 111.05 (4), supra, note 2; Rydahl’s Launderers & Cleaners, Wis. E. R. B. Decision No. 677 (1944); UAW-CIO and Four Wheel Drive Auto Co., Wis. E. R. B. Decision No. 687 (1944); cf. AUA and Garton Toy Co., Wis. E. R. B. Decision No. 1238 (1947); Killingsworth, State Labor Relations Acts 161-62 (1948). See In re United Brotherhood of Carpenters & Joiners, 2 L. R. R. M. 894 (Wis. County Cir. Ct., 1938); In re Charles Abresch Co., 3 L. R. R. M. 639 (Wis. E. R. B. Decision No. 744, 1938); cf. Wisconsin Board v. Hall Garage Corp., 18 L. R. R. M. 2419 (Wis. County Cir. Ct., 1946). In Allegheny Ludlum Steel Corp. v. Kelley, supra, suit had been brought in the state court for a declaratory judgment to restrain the state labor board from determining a representative of plaintiff’s supervisory employees to bargain collectively with the plaintiff. Under New York law the labor board had authority to hold elections to determine employee representation and to certify the results. 30 McKinney’s Cons. Laws § 705. Certification in itself, as in the instant case, did not impose a legal penalty. Suit had to be brought in an unfair labor practice proceeding to accomplish such result. 30 Ibid. § 706. Refusal to bargain with the representative of the employees was an unfair labor practice. 30 Ibid. §704 (6). Even though the New York law did not state, as does the Wisconsin law, that certification by the board was conclusive, we considered a decision of the New York court approving the jurisdiction of the state board to conduct a representative proceeding a final judgment ripe for our consideration. See Elyria Telephone Co., 58 N. L. R. B. 402; Newark Telephone Co., 59 N. L. R. B. 1408; People’s Telephone Corp., 69 N. L. R. B. 540; Ohio Telephone Service Co., 72 N. L. R. B. 488. The appellant company operates a telephone business in La Crosse County, Wisconsin. It is a subsidiary of the Central Telephone Co., whose subsidiaries operate telephone businesses in many states. The concession that the company is engaged in interstate commerce is based on the interstate telephone calls which it handles. “The Board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.” Moreover, the Wisconsin Act excludes from the definition of employee those working in a supervisory capacity. §111.02(3). They were, however, included under the protection of the federal act as then written. Packard Motor Co. v. Labor Board, 330 U. S. 485. The definition of employee under the Wisconsin Act also excludes certain strikers and others who have not been at work for certain periods. §111.02(3). These latter exceptions likewise do not in the main square with the definition of employee contained in § 2 (3) of the federal act. U. S. Const. Art. VI. Section 10 (a) of the National Labor Relations Act, as amended, now provides in part: “the Board is empowered by agreement with any agency of any State or Territory to cede to such agency jurisdiction over any cases in any industry (other than mining, manufacturing, communications, and transportation except where predominantly local in character) even though such cases may involve labor disputes affecting commerce, unless the provision of the State or Territorial statute applicable to the determination of such cases by such agency is inconsistent with the corresponding provision of this Act or has received a construction inconsistent therewith.” The agreement of August 27, 1948, between the National Board and the Wisconsin Board is restricted to the implementation of § 14 (b) of the federal act. See 22 L. R. R. 268. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

J

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Burton delivered the opinion of the Court. The question here is whether the rules and practices of the Southern Railway Company, which divide each dining car so as to allot ten tables exclusively to white passengers and one table exclusively to Negro passengers, and which call for a curtain or partition between that table and the others, violate § 3 (1) of the Interstate Commerce Act. That section makes it unlawful for a railroad in interstate commerce “to subject any particular person, ... to any undue or unreasonable prejudice or disadvantage in any respect whatsoever: . . . .” 54 Stat. 902, 49 U. S. C. § 3 (1). We hold that those rules and practices do violate the Act. This issue grows out of an incident which occurred May 17, 1942. On that date the appellant, Elmer W. Henderson, a Negro passenger, was traveling on a first-class ticket on the Southern Railway from Washington, D. C., to Atlanta, Georgia, en route to Birmingham, Alabama, in the course of his duties as an employee of the United States. The train left Washington at 2 p. m. At about 5:30 p. m., while the train was in Virginia, the first call to dinner was announced and he went promptly to the dining car. In accordance with the practice then in effect, the two end tables nearest the kitchen were conditionally reserved for Negroes. At each meal those tables were to be reserved initially for Negroes and, when occupied by Negroes, curtains were to be drawn between them and the rest of the car. If the other tables were occupied before any Negro passengers presented themselves at the diner then those two tables also were to be available for white passengers, and Negroes were not to be seated at them while in use by white passengers. When the appellant reached the diner, the end tables in question were partly occupied by white passengers but at least one seat at them was unoccupied. The dining-car steward declined to seat the appellant in the dining car but offered to serve him, without additional charge, at his Pullman seat. The appellant declined that offer and the steward agreed to send him word when space was available. No word was sent and the appellant was not served, although he twice returned to the diner before it was detached at 9 p. m. In October, 1942, the appellant filed a complaint with the Interstate Commerce Commission alleging especially that the foregoing conduct violated § 3 (1) of the Interstate Commerce Act. Division 2 of the Commission found that he had been subjected to undue and unreasonable prejudice and disadvantage, but that the occurrence was a casual incident brought about by the bad judgment of an employee. The Commission declined to enter an order as to future practices. 258 I. C. C. 413. A three-judge United States District Court for the District of Maryland, however, held that the railroad’s general practice, as evidenced by its instructions of August 6, 1942, was in violation of § 3 (1). Accordingly, on February 18, 1946, it remanded the case for further proceedings. 63 F. Supp. 906. Effective March 1, 1946, the company announced its modified rules which are now in effect. They provide for the reservation of ten tables, of four seats each, exclusively and unconditionally for white passengers and one table, of four seats, exclusively and unconditionally for Negro passengers. Between this table and the others a curtain is drawn during each meal. On remand, the full Commission, with two members dissenting and one not participating, found that the modified rules do not violate the Interstate Commerce Act and that no order for the future was necessary. 269 I. C. C. 73. The appellant promptly instituted the present proceeding before the District Court, constituted of the same three members as before, seeking to have the Commission’s order set aside and a cease and desist order issued. 28 U. S. C. §§ 41 (28), 43-48; 49 U. S. C. § 17 (9); see also, 28 U. S. C. (Supp. III) §§ 1336, 1398, 2284, 2321, 2325. With one member dissenting, the court sustained the modified rules on the ground that the accommodations are adequate to serve the average number of Negro passengers and are “proportionately fair.” 80 F. Supp. 32, 39. The case is here on direct appeal. 28 U. S. C. (Supp. Ill) §§ 1253, 2101 (b). In this Court, the United States filed a brief and argued orally in support of the appellant. It is clear that appellant has standing to bring these proceedings. He is an aggrieved party, free to travel again on the Southern Railway. Having been subjected to practices of the railroad which the Commission and the court below found to violate the Interstate Commerce Act, he may challenge the railroad's current regulations on the ground that they permit the recurrence of comparable violations. Mitchell v. United, States, 313 U. S. 80, 92-93. The material language in § 3 (1) of the Interstate Commerce Act has been in that statute since its adoption in 1887. 24 Stat. 380. From the beginning, the Interstate Commerce Commission has recognized the application of that language to discriminations between white and Negro passengers. Councill v. Western & Atlantic R. Co., 1 I. C. C. 339; Heard v. Georgia R. Co., 1 I. C. C. 428; Heard v. Georgia R. Co., 3 I. C. C. 111; Edwards v. Nashville, C. & St. L. R. Co., 121. C. C. 247; Cozart v. Southern R. Co., 161. C. C. 226; Gaines v. Seaboard Air Line R. Co., 16 I. C. C. 471; Crosby v. St. Louis-San Francisco R. Co., 112 I. C. C. 239. That section recently was so applied in Mitchell v. United States, supra. The decision of this case is largely controlled by that in the Mitchell case. There a Negro passenger holding a first-class ticket was denied a Pullman seat, although such a seat was unoccupied and would have been available to him if he had been white. The railroad rules had allotted a limited amount of Pullman space, consisting of compartments and drawing rooms, to Negro passengers and, because that space was occupied, the complainant was excluded from the Pullman car and required to ride in a second-class coach. This Court held that the passenger thereby had been subjected to an unreasonable disadvantage in violation of § 3 (l). The similarity between that case and this is inescapable. The appellant here was denied a seat in the dining car although at least one seat was vacant and would have been available to him, under the existing rules, if he had been white. The issue before us, as in the Mitchell case, is whether the railroad’s current rules and practices cause passengers to be subjected to undue or unreasonable prejudice or disadvantage in violation of § 3 (1). We find that they do. The right to be free from unreasonable discriminations belongs, under § 3 (1), to each particular person. Where a dining car is available to passengers holding tickets entitling them to use it, each such passenger is equally entitled to its facilities in accordance with reasonable regulations. The denial of dining service to any such passenger by the rules before us subjects him to a prohibited disadvantage. Under the rules, only four Negro passengers may be served at one time and then only at the table reserved for Negroes. Other Negroes who present themselves are compelled to await a vacancy at that table, although there may be many vacancies elsewhere in the diner. The railroad thus refuses to extend to those passengers the use of its existing and unoccupied facilities. The rules impose a like deprivation upon white passengers whenever more than 40 of them seek to be served at the same time and the table reserved for Negroes is vacant. We need not multiply instances in which these rules sanction unreasonable discriminations. The curtains, partitions and signs emphasize the artificiality of a difference in treatment which serves only to call attention to a racial classification of passengers holding identical tickets and using the same public dining facility. Cf. McLaurin v. Oklahoma State Regents, ante, p. 637, decided today. They violate § 3 (1). Our attention has been directed to nothing which removes these racial allocations from the statutory condemnation of “undue or unreasonable prejudice or disadvantage . . . .” It is argued that the limited demand for dining-car facilities by Negro passengers justifies the regulations. But it is no answer to the particular passenger who is denied service at an unoccupied place in a dining car that, on the average, persons like him are served. As was pointed out in Mitchell v. United States, 313 U. S. 80, 97, “the comparative volume of traffic cannot justify the denial of a fundamental right of equality of treatment, a right specifically safeguarded by the provisions of the Interstate Commerce Act.” Cf. McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151; Missouri ex rel. Gaines v. Canada, 305 U. S. 337. That the regulations may impose on white passengers, in proportion to their numbers, disadvantages similar to those imposed on Negro passengers is not an answer to the requirements of §3(1). Discriminations that operate to the disadvantage of two groups are not the less to be condemned because their impact is broader than if only one were affected. Cf. Shelley v. Kraemer, 334 U. S. 1, 22. Since § 3 (1) of the Interstate Commerce Act invalidates the rules and practices before us, we do not reach the constitutional or other issues suggested. The judgment of the District Court is reversed and the cause is remanded to that court with directions to set aside the order of the Interstate Commerce Commission which dismissed the original complaint and to remand the case to that Commission for further proceedings in conformity with this opinion. It is so ordered. Mr. Justice Douglas concurs in the result. Mr. Justice Clark took no part in the consideration or decision of this case. No reliance is placed in this case upon any action by any state. Rule of the Southern Railway Company issued July 3, 1941, and in effect May 17, 1942: “dining car regulations “Meals should be served to passengers of different races at separate times. If passengers of one race desire meals while passengers of a different race are being served in the dining car, such meals will be served in the room or seat occupied by the passenger without extra charge. If the dining ear is equipped with curtains so that it can be divided into separate compartments, meals may be served to passengers of different races at the same time in the compartments set aside for them.” 258 I. C. C. 413, 415, 63 F. Supp. 906, 910. Joint Circular of the Southern Railway System issued August 6, 1942: “Effective at once please be governed by the following with respect to the race separation curtains in dining cars: “Before starting each meal pull the curtains to service position and place a ‘Reserved’ card on each of the two tables behind the curtains. “These tables are not to be used by white passengers until all other seats in the car have been taken. Then if no colored passengers present themselves for meals, the curtain should be pushed back, cards removed and white passengers served at those tables. “After the tables are occupied by white passengers, then should colored passengers present themselves they should be advised that they will be served just as soon as those compartments are vacated. “ ‘Reserved’ cards are being supplied you.” 258 I. C. C. at p. 415, 63 F. Supp. at p. 910. “(1) It shall be unlawful for any common carrier subject to the provisions of this part to make, give, or came any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic, in any respect whatsoever; or to subject any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever: . . . .” (Emphasis supplied.) 54 Stat. 902, 49 U. S. C. §3 (1). The appellant sought an order directing the railroad not only to cease and desist from the specific violations alleged but also to establish in the future, for the complainant and other Negro interstate passengers, equal and just dining-car facilities and such other service and facilities as the Commission might consider reasonable and just, and requiring the railroad to discontinue using curtains around tables reserved for Negroes. The appellant sought damages, but the Commission found no pecuniary damages and that issue has not been pressed further. “TRANSPORTATION DEPARTMENT CIRCULAR NO. 142. CANCELLING INSTRUCTIONS ON THIS SUBJECT DATED JULY 3, 1941, AND AUGUST 6, 1942. “SUBJECT: SEGREGATION OF WHITE AND COLORED PASSENGERS IN DINING CARS. “To: Passenger Conductors and Dining Car Stewards. “Consistent with experience in respect to the ratio between the number of white and colored passengers who ordinarily apply for service in available diner space, equal but separate accommodations shall be provided for white and colored passengers by partitioning diners and the allotment of space, in accordance with the rules, as follows: “(1) That one of the two tables at Station No. 1 located to the left side of the aisle facing the buffet, seating four persons, shall be reserved exclusively for colored passengers, and the other tables in the diner shall be reserved exclusively for white passengers. “(2) Before starting each meal, draw the partition curtain separating the table in Station No. 1, described above, from the table on that side of the aisle in Station No. 2, the curtain to remain so drawn for the duration of the meal. “(3) A ‘Reserved’ card shall be kept in place on the left-hand table in Station No. 1, described above, at all times during the meal except when such table is occupied as provided in these rules. “ (4) These rules become effective March 1, 1946. “R. K. McClain, “Assistant Vice-President.” 2691. C. C. 73, 75,80 F. Supp. 32,35. Counsel for the railway company, at a subsequent hearing, corrected the above rules “to the extent of using the word ‘negroes’ in the place of ‘colored persons.’ ” Also, the evidence shows, and the Commission has stated, that “White and Negro soldiers are served together, without distinction.” 258 I. C. C. 413, 415, 63 F. Supp. 906, 910. The rules, accordingly, are treated as applicable only to civilian passengers. The company further showed that it is now substituting a five-foot high wooden partition in place of the curtain. The steward’s office is being placed in the table space opposite that reserved for Negro passengers and a similar wooden partition is being erected between that office and the rest of the car. The company was permitted to introduce two tabulations, covering about ten days each, showing the comparative numbers of meals served to white and Negro passengers on trips comparable to the one which the appellant had taken. These show that only about 4% of the total meals served were served to Negro passengers whereas four reserved seats exceed 9% of a total seating capacity of 44. On the other hand, the tabulations also show that at one meal 17 Negro passengers, and at each of 20 meals more than eight Negro passengers, were served. Similarly, the brief filed by the Commission states that, out of the 639 serving periods reported, on 15 occasions more than four times as many white passengers were served as there were seats reserved for them, and, on 541 occasions, there were two or more rounds of servings. “The Western and Atlantic Railroad Company will be notified to cease and desist from subjecting colored persons to undue and unreasonable prejudice and disadvantage in violation of section 3 of the Act to regulate commerce, and from furnishing to colored persons purchasing first-class tickets on its road accommodations which are not equally safe and comfortable with those furnished other first-class passengers.” 11. C. C. at p. 347. The rules also denied access by Negroes to the dining car and observation car. The principles there announced applied equally to those facilities. That specific denial of service was condemned by the Commission and the District Court as a violation of §3 (1). Review of that condemnation is not sought here. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Powell delivered the opinion of the Court. The question presented- is whether respondent, involuntarily committed to a state institution for the mentally retarded, has substantive rights under the Due Process Clause of the Fourteenth Amendment to (i) safe conditions of confinement; (ii) freedom from bodily restraints; and (iii) training or “habilitation.” Respondent sued under 42 U. S. C. § 1983 three administrators of the institution, claiming damages for the alleged breach of his constitutional rights. I Respondent Nicholas Romeo is profoundly retarded. Although 33 years old, he has the mental capacity of an 18-month-old child, with an I. Q. between 8 and 10. He cannot talle and lacks the most basic self-care skills. Until he was 26, respondent lived with his parents in Philadelphia. But after the death of his father in May 1974, his mother was unable to care for him. Within two weeks of the father’s death, respondent’s mother sought his temporary admission to a nearby Pennsylvania hospital. Shortly thereafter, she asked the Philadelphia County Court of Common Pleas to admit Romeo to a state facility on a permanent basis. Her petition to the court explained that she was unable to care for Romeo or control his violence. As part of the commitment process, Romeo was examined by a physician and a psychologist. They both certified that respondent was severely retarded and unable to care for himself. App. 21a-22a and 28a-29a. On June 11, 1974, the Court of Common Pleas committed respondent to the Penn-hurst State School and Hospital, pursuant to the applicable involuntary commitment provision of the Pennsylvania Mental Health and Mental Retardation Act, Pa. Stat. Ann., Tit. 50, § 4406(b) (Purdon 1969). At Pennhurst, Romeo was injured on numerous occasions, both by his own violence and by the reactions of other residents to him. Respondent’s mother became concerned about these injuries. After objecting to respondent’s treatment several times, she filed this complaint on November 4, 1976, in the United States District Court for the Eastern District of Pennsylvania as his next friend. The complaint alleged that “[djuring the period July, 1974 to the present, plaintiff has suffered injuries on at least sixty-three occasions.” The complaint originally sought damages and injunctive relief from Pennhurst’s director and two supervisors; it alleged that these officials knew, or should have known, that Romeo was suffering injuries and that they failed to institute appropriate preventive procedures, thus violating his rights under the Eighth and Fourteenth Amendments. Thereafter, in late 1976, Romeo was transferred from his ward to the hospital for treatment of a broken arm. While in the infirmary, and by order of a doctor, he was physically restrained during portions of each day. These restraints were ordered by Dr. Gabroy, not a defendant here, to protect Romeo and others in the hospital, some of whom were in traction or were being treated intravenously. 7 Tr. 40, 49, 76-78. Although respondent normally would have returned to his ward when his arm healed, the parties to this litigation agreed that he should remain in the hospital due to the pending lawsuit. 5 id., at 248; 6 id., at 57-58 and 137. Nevertheless, in December 1977, a second amended complaint was filed alleging that the defendants were restraining respondent for prolonged periods on a routine basis. The second amended complaint also added a claim for damages to compensate Romeo for the defendants’ failure to provide him with appropriate “treatment or programs for his mental retardation.” All claims for injunctive relief were dropped prior to trial because respondent is a member of the class seeking such relief in another action. An 8-day jury trial was held in April 1978. Petitioners introduced evidence that respondent participated in several programs teaching basic self-care skills. A comprehensive behavior-modification program was designed by staff members to reduce Romeo’s aggressive behavior, but that program was never implemented because of his mother’s objections. Respondent introduced evidence of his injuries and of conditions in his unit. At the close of the trial, the court instructed the jury that "if any or all of the defendants were aware of and failed to take all reasonable steps to prevent repeated attacks upon Nicholas Romeo," such failure deprived him of constitutional rights. App. 73a. The jury also was instructed that if the defendants shackled Romeo or denied him treatment “as a punishment for filing this lawsuit,” his constitutional rights were violated under the Eighth Amendment. Id., at 73a-75a. Finally, the jury was instructed that only if they found the defendants “deliberate[ly] indrfferen[t] to the serious medical [and psychological] needs” of Romeo could they find that his Eighth and Fourteenth Amendment rights had been violated. Id., at 74a-75a. The jury returned a verdict for the defendants, on which judgment was entered. The Court of Appeals for the Third Circuit, sitting en banc, reversed and remanded for a new trial. 644 F. 2d 147 (1980). The court held that the Eighth Amendment, prohibiting cruel and unusual punishment of those convicted of crimes, was not an appropriate source for determining the rights of the involuntarily committed. Rather, the Fourteenth Amendment and the liberty interest protected by that Amendment provided the proper constitutional basis for these rights. In applying the Fourteenth Amendment, the court found that the involuntarily committed retain liberty interests in freedom of movement and in personal security. These were “fundamental liberties” that can be limited only by an “overriding, non-punitive” state interest. Id., at 157-158 (footnote omitted). It further found that the involuntarily committed have a liberty interest in habilitation designed to “treat” their mental retardation. Id., at 164-170. The en banc court did not, however, agree on the relevant standard to be used in determining whether Romeo’s rights had been violated. Because physical restraint “raises a presumption of a punitive sanction,” the majority of the Court of Appeals concluded that it can be justified only by “compelling necessity.” Id., at 159-160 (footnote omitted). A somewhat different standard was appropriate for the failure to provide for a resident’s safety. The majority considered that such a failure must be justified by a showing of “substantial necessity.” Id., at 164. Finally, the majority held that when treatment has been administered, those responsible are liable only if the treatment is not “acceptable in the light of present medical or other scientific knowledge.” Id., at 166-167 and 173. Chief Judge Seitz, concurring in the judgment, considered the standards articulated by the majority as indistinguishable from those applicable to medical malpractice claims. In Chief Judge Seitz’ view, the Constitution “only requires that the courts make certain that professional judgment in fact was exercised.” Id., at 178. He concluded that the appropriate standard was whether the defendants’ conduct was “such a substantial departure from accepted professional judgment, practice, or standards in the care and treatment of this plaintiff as to demonstrate that the defendants did not base their conduct on a professional judgment.” Ibid. We granted the petition for certiorari because of the importance of the question presented to the administration of state institutions for the mentally retarded. 451 U. S. 982 (1981). II We consider here for the first time the substantive rights of involuntarily committed mentally retarded persons under the Fourteenth Amendment to the Constitution. In this case, respondent has been committed under the laws of Pennsylvania, and he does not challenge the commitment. Rather, he argues that he has a constitutionally protected liberty interest in safety, freedom of movement, and training within the institution; and that petitioners infringed these rights by failing to provide constitutionally required conditions of confinement. The mere fact that Romeo has been committed under proper procedures does not deprive him of all substantive liberty interests under the Fourteenth Amendment. See, e. g., Vitek v. Jones, 445 U. S. 480, 491-494 (1980). Indeed, the State concedes that respondent has a right to adequate food, shelter, clothing, and medical care. We must decide whether liberty interests also exist in safety, freedom of movement, and training. If such interests do exist, we must further decide whether they have been infringed in this case. A Respondent’s first two claims involve liberty interests recognized by prior decisions of this Court, interests that involuntary commitment proceedings do not extinguish. The first is a claim to safe conditions. In the past, this Court has noted that the right to personal security constitutes a “historic liberty interest” protected substantively by the Due Process Clause. Ingraham v. Wright, 430 U. S. 651, 673 (1977). And that right is not extinguished by lawful confinement, even for penal purposes. See Hutto v. Finney, 437 U. S. 678 (1978). If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed — who may not be punished at all — in unsafe conditions. Next, respondent claims a right to freedom from bodily restraint. In other contexts, the existence of such an interest is clear in the prior decisions of this Court. Indeed, “[ljiberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 18 (1979) (Powell, J., concurring in part and dissenting in part). This interest survives criminal conviction and incarceration. Similarly, it must also survive involuntary commitment. B Respondent’s remaining claim is more troubling. In his words, he asserts a “constitutional right to minimally adequate habilitation.” Brief for Respondent 8, 23, 45. This is a substantive due process claim that is said to be grounded in the liberty component of the Due Process Clause of the Fourteenth Amendment. The term “habilitation,” used in psychiatry, is not defined precisely or consistently in the opinions below or in the briefs of the parties or the amici. As noted previously in n. 1, supra, the term refers to “training and development of needed skills.” Respondent emphasizes that the right he asserts is for “minimal” training, see Brief for Respondent 34, and he would leave the type and extent of training to be determined on a case-by-case basis “in light of present medical or other scientific knowledge,” id., at 45. In addressing the asserted right to training, we start from established principles. As a general matter, a State is under no constitutional duty to provide substantive services for those within its border. See Harris v. McRae, 448 U. S. 297, 318 (1980) (publicly funded abortions); Maher v. Roe, 432 U. S. 464, 469 (1977) (medical treatment). When a person is institutionalized — and wholly dependent on the State — it is conceded by petitioners that a duty to provide certain services and care does exist, although even then a State necessarily has considerable discretion in determining the nature and scope of its responsibilities. See Richardson v. Belcher, 404 U. S. 78, 83-84 (1971); Dandridge v. Williams, 397 U. S. 471, 478 (1970). Nor must a State “choose between attacking every aspect of a problem or not attacking the problem at all.” Id., at 486-487. Respondent, in light of the severe character of his retardation, concedes that no amount of training will make possible his release. And he does not argue that if he were still at home, the State would have an obligation to provide training at its expense. See Tr. of Oral Arg. 33. The record reveals that respondent’s primary needs are bodily safety and a minimum of physical restraint, and respondent clearly claims training related to these needs. As we have recognized that there is a constitutionally protected liberty interest in safety and freedom from restraint, supra, at 315-316, training may be necessary to avoid unconstitutional infringement of those rights. On the basis of the record before us, it is quite uncertain whether respondent seeks any “habilitation” or training unrelated to safety and freedom from bodily restraints. In his brief to this Court, Romeo indicates that even the self-care programs he seeks are needed to reduce his aggressive behavior. See Brief for Respondent 21-22, 50. And in his offer of proof to the trial court, respondent repeatedly indicated that, if allowed to testify, his experts would show that additional training programs, including self-care programs, were needed to reduce his aggressive behavior. App. to Pet. for Cert. OSa-lOéa. If, as seems the case, respondent seeks only training related to safety and freedom from restraints, this case does not present the difficult question whether a mentally retarded person, involuntarily committed to a state institution, has some general constitutional right to training per se, even when no type or amount of training would lead to freedom. Chief Judge Seitz, in language apparently adopted by respondent, observed: “I believe that the plaintiff has a constitutional right to minimally adequate care and treatment. The existence of a constitutional right to care and treatment is no longer a novel legal proposition.” 644 F. 2d, at 176. Chief Judge Seitz did not identify or otherwise define— beyond the right to reasonable safety and freedom from physical restraint — the “minimally adequate care and treatment” that appropriately may be required for this respondent. In the circumstances presented by this case, and on the basis of the record developed to date, we agree with his view and conclude that respondent’s liberty interests require the State to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint. In view of the kinds of treatment sought by respondent and the evidence of record, we need go no further in this case. Ill A We have established that Romeo retains liberty interests in safety and freedom from bodily restraint. Yet these interests are not absolute; indeed to some extent they are in conflict. In operating an institution such as Pennhurst, there are occasions in which it is necessary for the State to restrain the movement of residents — for example, to protect them as well as others from violence. Similar restraints may also be appropriate in a training program. And an institution cannot protect its residents from all danger of violence if it is to permit them to have any freedom of movement. The question then is not simply whether a liberty interest has been infringed but whether the extent or nature of the restraint or lack of absolute safety is such as to violate due process. In determining whether a substantive right protected by the Due Process Clause has been violated, it is necessary to balance “the liberty of the individual” and “the demands of an organized society.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). In seeking this balance in other cases, the Court has weighed the individual’s interest in liberty against the State’s asserted reasons for restraining individual liberty. In Bell v. Wolfish, 441 U. S. 520 (1979), for example, we considered a challenge to pretrial detainees’ confinement conditions. We agreed that the detainees, not yet convicted of the crime charged, could not be punished. But we upheld those restrictions on liberty that were reasonably related to legitimate government objectives and not tantamount to punishment. See id., at 539. We have taken a similar approach in deciding procedural due process challenges to civil commitment proceedings. In Parham v. J. R., 442 U. S. 584 (1979), for example, we considered a challenge to state procedures for commitment of a minor with parental consent. In determining that procedural due process did not mandate an adversarial hearing, we weighed the liberty interest of the individual against the legitimate interests of the State, including the fiscal and administrative burdens additional procedures would entail. Id., at 599-600. Accordingly, whether respondent’s constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests. If there is to be any uniformity in protecting these interests, this balancing cannot be left to the unguided discretion of a judge or jury. We therefore turn to consider the proper standard for determining whether a State adequately has protected the rights of the involuntarily committed mentally retarded. B We think the standard articulated by Chief Judge Seitz affords the necessary guidance and reflects the proper balance between the legitimate interests of the State and the rights of the involuntarily committed to reasonable conditions of safety and freedom from unreasonable restraints. He would have held that “the Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.” 644 F. 2d, at 178. Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish. Cf. Estelle v. Gamble, 429 U. S. 97, 104 (1976). At the same time, this standard is lower than the “compelling” or “substantial” necessity tests the Court of Appeals would require a State to meet to justify use of restraints or conditions of less than absolute safety. We think this requirement would place an undue burden on the administration of institutions such as Pennhurst and also would restrict unnecessarily the exercise of professional judgment as to the needs of residents. Moreover, we agree that respondent is entitled to minimally adequate training. In this case, the minimally adequate training required by the Constitution is such training as may be reasonable in light of respondent’s liberty interests in safety and freedom from unreasonable restraints. In determining what is “reasonable” — in this and in any case presenting a claim for training by a State — we emphasize that courts must show deference to the judgment exercised by a qualified professional. By so limiting judicial review of challenges to conditions in state institutions, interference by the federal judiciary with the internal operations of these institutions should be minimized. Moreover, there certainly is no reason to think judges or juries are better qualified than appropriate professionals in making such decisions. See Parham v. J.R., supra, at 607; Bell v. Wolfish, supra, at 544 (Courts should not ‘“second-guess the expert administrators on matters on which they are better informed’ ”). For these reasons, the decision, if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment. In an action for damages against a professional in his individual capacity, however, the professional will not be liable if he was unable to satisfy his normal professional standards because of budgetary constraints; in such a situation, good-faith immunity would bar liability. See n. 13, supra. IV In deciding this case, we have weighed those postcom-mitment interests cognizable as liberty interests under the Due Process Clause of the Fourteenth Amendment against legitimate state interests and in light of the constraints under which most state institutions necessarily operate. We repeat that the State concedes a duty to provide adequate food, shelter, clothing, and medical care. These are the es-sentíais of the care that the State must provide. The State also has the unquestioned duty to provide reasonable safety for all residents and personnel within the institution. And it may not restrain residents except when and to the extent professional judgment deems this necessary to assure such safety or to provide needed training. In this case, therefore, the State is under a duty to provide respondent with such training as an appropriate professional would consider reasonable to ensure his safety and to facilitate his ability to function free from bodily restraints. It may well be unreasonable not to. provide training when training could significantly reduce the need for restraints or the likelihood of violence. Respondent thus enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests. Such conditions of confinement would comport fully with the purpose of respondent’s commitment. Cf. Jackson v. Indiana, 406 U. S. 715, 738 (1972); see n. 27, supra. In determining whether the State has met its obligations in these respects, decisions made by the appropriate professional are entitled to a presumption of correctness. Such a presumption is necessary to enable institutions of this type — often, unfortunately, overcrowded and understaffed — to continue to function. A single professional may have to make decisions with respect to a number of residents with widely varying needs and problems in the course of a normal day. The administrators, and particularly professional personnel, should not be required to make each decision in the shadow of an action for damages. In this case, we conclude that the jury was erroneously instructed on the assumption that the proper standard of liability was that of the Eighth Amendment. We vacate the decision of the Court of Appeals and remand for further proceedings consistent with this decision. So ordered. The American Psychiatric Association explains: “The word ‘habilitation,’ ... is commonly used to refer to programs for the mentally-retarded because mental retardation is ... a learning disability and training impairment rather than an illness. [T]he principal focus of habilitation is upon training and development of needed skills.” Brief for American Psychiatric Association as Amicus Curiae 4, n. 1. Mrs. Romeo’s petition to the Court of Common Pleas stated: “Since my husband’s death I am unable to handle him. He becomes violent — Kicks, punches, breaks glass; He can’t speak — wants to express himself but can’t. He is [a] constant 24 hr. care. [Without my husband I am unable to care for him.” App. 18a. Petitioner Duane Youngberg was the Superintendent of Pennhurst; he had supervisory authority over the entire facility. Petitioner Richard Matthews was the Director of Resident Life at Pennhurst. Petitioner Marguerite Conley was Unit Director for the unit in which respondent lived. According to respondent, petitioners are administrators, not medical doctors. See Brief for Respondent 2. Youngberg and Matthews are no longer at Pennhurst. Although the Court of Appeals described these restraints as “shackles,” “soft” restraints, for the arms only, were generally used. 7 Tr. 53-55. Respondent uses “treatment” as- synonymous with “habilitation” or “training.” See Brief for Respondent 21-23. Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981) (remanded for further proceedings). Prior to his transfer to Pennhurst’s hospital ward, Romeo participated in programs dealing with feeding, showering, drying, dressing, self-control, and toilet training, as well as a program providing interaction with staff members. Defendants’ Exhibit 10; 3 Tr. 69-70; 5 id., at 44-56, 242-250; 6 id., at 162-166; 7 id., at 41-48. Some programs continued while respondent was in the hospital, 5 id., at 227,248,256; 6 id., at 50,162-166; 6 id., at 32, 34, 41-48, and they reduced respondent’s aggressive behavior to some extent, 7 id., at 45. 2 id., at 7; 5 id., at 88-90; 6 id., at 88, 200-203; Defendants’ Exhibit 1, p. 9. The program called for short periods of separation from other residents and for use of “muffs” on plaintiff’s hands for short periods of time, i. e., five minutes, to prevent him from harming himself or others. 1 Tr. 53; 4 id., at 25; 6 id., at 204. The District Judge refused to allow testimony by two of Romeo's witnesses — trained professionals — indicating that Romeo would have benefited from more or different training programs. Hie trial judge explained that evidence of the advantages of alternative forms of treatment might be relevant to a malpractice suit, but was not relevant to a constitutional claim under § 1983. App. to Pet. for Cert. 101. The “deliberate indifference” standard was adopted by this Court in Estelle v. Gamble, 429 U. S. 97, 104 (1976), a case dealing with prisoners’ rights to punishment that is not “cruel and unusual” under the Eighth Amendment. Although the District Court did not refer to Estelle v. Gamble in charging the jury, it erroneously used the deliberate-indifference standard articulated in that case. See App. 45a, 75a. The Court of Appeals used “habilitation” and “treatment” as synonymous, though it regarded “habilitation” as more accurate in describing treatment needed by the mentally retarded. See 644 F. 2d, at 165, and n. 40. The existence of a qualified immunity defense was not at issue on appeal. The defendants had received instructions on this defense, App. 76a, and it was not challenged by respondent. 644 F. 2d, at 173, n. 1. After citing Pierson v. Ray, 386 U. S. 547 (1967), and Scheuer v. Rhodes, 416 U. S. 232 (1974), the majority of the Court of Appeals noted that such instructions should be given again on the remand. 644 F. 2d, at 171-172. Actually, the court divided the right-to-treatment claim into three categories and adopted three standards, but only the standard described in text is at issue before this Court. The Court of Appeals also stated that if a jury finds that no treatment has been administered, it may hold the institution’s administrators liable unless they can provide a compelling explanation for the lack of treatment, id., at 165,173, but respondent does not discuss this precise standard in his brief and it does not appear to be relevant to the facts of this case. In addition, the court considered “least intrusive” analysis appropriate to justify severe intrusions on individual dignity, such as permanent physical alteration or surgical intervention, id., at 165-166 and 173, but respondent concedes that this issue is not present in this case. Judge Aldisert joined Chief Judge Seitz’ opinion, but wrote separately to emphasize the nature of the difference between the majority opinion and that of the Chief Judge. On a conceptual level, Judge Aldisert thought that the court erred in abandoning the common-law method of deciding the case at bar rather than articulating broad principles unconnected with the facts of the case and of uncertain meaning. Id., at 182-183. And, on a pragmatic level, Judge Aldisert warned that neither juries nor those administering state institutions would receive guidance from the “amorphous constitutional law tenets” articulated in the majority opinion. Id., at 184. See id., at 183-185. Judge Garth also joined Chief Judge Seitz’ opinion, and wrote separately to criticize the majority for addressing issues not raised by the facts of this case. Id., at 186. In pertinent part, that Amendment provides that a State cannot deprive “any person of life, liberty, or property, without due process of law . . . .” U. S. Const., Arndt. 14, § 1. Respondent no longer relies on the Eighth Amendment as a direct source of constitutional rights. See Brief for Respondent 13, n. 12. Brief for Petitioners 8, 11, 12, and n. 10; Brief for Respondent 15-16. See also Brief for State of Connecticut et al. as Amici Curiae 8. Petitioners argue that they have fully protected these interests. Petitioners do not appear to argue to the contrary. See Brief for Petitioners 27-31. Respondent also argues that because he was committed for care and treatment under state law he has a state substantive right to habilitation, which is entitled to substantive, not procedural, protection under the Due Process Clause of the Fourteenth Amendment. But this argument is made for the first time in respondent’s brief to this Court. It was not advanced in the courts below, and was not argued to the Court of Appeals as a ground for reversing the trial court. Given the uncertainty of Pennsylvania law and the lack of any guidance on this issue from the lower federal courts, we decline to consider it now. See Dothard v. Rawlinson, 433 U. S. 321, 323, n. 1 (1977); Duignan v. United States, 274 U. S. 195, 200 (1927); Old Jordan Milling Co. v. Société Anonyme des Mines, 164 U. S. 261, 264-265 (1896). Professionals in the habilitation of the mentally retarded disagree strongly on the question whether effective training of all severely or profoundly retarded individuals is even possible. See, e. g., Favell, Risley, Wolfe, Riddle, & Rasmussen, The Limits of Habilitation: How Can We Identify Them and How Can We Change Them?, 1 Analysis and Intervention in Developmental Disabilities 37 (1981); Bailey, Wanted: A Rational Search for the Limiting Conditions of Habilitation in the Retarded, 1. Analysis and Intervention in Developmental Disabilities 45 (1981); Kauffman & Krouse, The Cult of Educability: Searching for the Substance of Things Hoped for; The Evidence of Things Not Seen, 1 Analysis and Intervention in Developmental Disabilities 53 (1981). See, e. g., description of complaint, supra, at 310. See also Brief for Appellant in No. 78-1982, pp. 11-14, 20-21, and 24 (CA3). In the trial court, respondent asserted that “state officials at a state mental hospital have a duty to provide residents . . . with such treatment as will afford them a reasonable opportunity to acquire and maintain those life skills necessary to cope as effectively as their capacities permit.” App. to Pet. for Cert. 94a-95a. But this claim to a sweeping per se right was dropped thereafter. In his brief to this Court, respondent does not repeat it and, at oral argument, respondent’s counsel explicitly disavowed any claim that respondent is constitutionally entitled to such treatment as would enable him “to achieve his maximum potential.” Tr. of Oral Arg. 46-48. Chief Judge Seitz used the tern “treatment” as synonymous with training or habilitation. See 644 F. 2d, at 181. It is not feasible, as is evident from the variety of language and formulations in the opinions below and the various briefs here, to define or identify the type of training that may be required in every case. A court properly may start with the generalization that there is a right to minimally adequate training. The basic requirement of adequacy, in terms more familiar to courts, may be stated as that training which is reasonable in light of identifiable liberty interests and the circumstances of the case. A federal court, of course, must identify a constitutional predicate for the imposition of any affirmative duty on a State. Because the facts in cases of confinement of mentally retarded patients vary widely, it is essential to focus on the facts and circumstances of the case before a court. Judge Aldisert, in his concurring opinion in the court below, was critical of the “majority’s abandonment of incremental decision-making in favor of promulgation of broad standards . . . [that] lac[k] utility for the groups most affected by this decision.” Id., at 183-184. Judge Garth agreed that reaching issues not presented by the case requires a court to articulate principles and rules of law in “the absence of an appropriate record . . . and without the benefit of analysis, argument, or briefing” on such issues. Id., at 186. In Romeo’s case, there can be no question that physical restraint was necessary at times. See n. 2, supra. See also Jackson v. Indiana, 406 U. S. 715, 738 (1972) (holding that an incompetent pretrial detainee cannot, after a competency hearing, be held indefinitely without either criminal process or civil commitment; due process requires, at a minimum, some rational relation between the nature and duration of commitment and its purpose). This case differs in critical respects from Jackson, a procedural due process case involving the validity of an involuntary commitment. Here, respondent was committed by a court on petition of his mother who averred that in view of his condition she could neither care for him nor control his violence. N. 2, supra. Thus, the purpose of respondent’s commitment was to provide reasonable care and safety, conditions not available to him outside of an institution. See also Addington v. Texas, 441 U. S. 418 (1979). In that case, we held that the State must prove the need for commitment by “clear and convincing” evidence. See id., at 431-432. We reached this decision by weighing the individual’s liberty interest against the State’s legitimate interests in confinement. See Parham v. J. R., 442 U. S. 584, 608, n. 16 (1979) (In limiting judicial review of medical decisions made by professionals, “it is incumbent on courts to design procedures that protect the rights of the individual without unduly burdening the legitimate efforts of the states to deal with difficult social problems”). See also Rhodes v. Chapman, 452 U. S. 337, 352 (1981) (“[Cjourts cannot assume that state legislatures and prison officials are insensitive to the requirements of the Constitution or to the perplexing sociological problems of how best to achieve the goals of the penal function in the criminal justice system . . .”); Bell v. Wolfish, 441 U. S. 520, 539 (1979) (In the context of conditions of confinement of pretrial detainees, “[cjourts must be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility”); Wolff v. McDonnell, 418 U. S. 539, 556 (1974) (In considering a procedural due process claim in the context of prison, “there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application”). See also Townsend & Mattson, The Interaction of Law and Special Education: Observing the Emperor’s New Clothes, 1 Analysis and Intervention in Developmental Disabilities 75 (1981) (judicial resolution of rights of the handicapped can have adverse as well as positive effects on social change). By “professional” decisionmaker, we mean a person competent, whether by education, training or experience, to make the particular decision at issue. Long-term treatment decisions normally should be made by persons with degrees in medicine or nursing, or with appropriate training in areas such as psychology, physical therapy, or the care and training of the retarded. Of course, day-to-day decisions regarding care — including decisions that must be made without delay — necessarily will be made in many instances by employees without formal training but who are subject to the supervision of qualified persons. All members of the Court of Appeals agreed that respondent’s expert testimony should have been admitted. This issue was not included in the questions presented for certiorari, and we have no reason to disagree with the view that the evidence was admissible. It may be relevant to whether petitioners’ decisions were a substantial departure from the requisite professional judgment. See supra, this page. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

D

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. These cases are a sequel to our decision in City of Chicago v. United States, 396 U. S. 162, last; Term. The Chicago & Eastern Illinois Railroad (C&EI) filed a notice under § 13a (1) of the Interstate Commerce Act, 72 Stat. 571, 49 U. S. C. .§ 13a (1), proposing to discontinue a pair of trains known as the “Georgian,” operated by it between Chicago, Illinois, and Evansville, Indiana, and operated in conjunction with trains of the Louisville & Nashville Railroad (L&N) between.Evansville, Indiana, and Atlanta, Georgia, crossing Kentucky and Tennessee en route.. Part of-this litigation grows out of the ICC’s approval of the C&EI’s discontinuance of the Chicago-Evansville segment of the “Georgian,” evidenced by its termination of its investigation. The L&N also operates the “Hummingbird.” between Cincinnati, Ohio, and New Orleans, Louisiana. The “Hummingbird” connects with the “Georgian” at Nashville, Tennessee, where coaches and sleepers are transferred between the two trains. Following the ICC’s approval of C&EI’s discontinuance, the L&N served notice of discontinuance of the “Hummingbird” which the ICC also approved. In City of Chicago v. United States, supra, we held that ICC decisions to discontinue such an investigation were reviewable and remanded the cases- back to the District Court. That court then ordered consolidation . and remanded back to the ICC for further hearings, holding that the notice served by the C&EI on the Governors of Illinois and Indiana and at every station along the Chicago-Evansville run was inadequate because the people of Kentucky, Tennessee, and Georgia, and the Governors of those States were not notified. The “Hummingbird” discontinuance was also remanded to the ICC because of its close relationship with the “Georgian.” These appeals followed. We note jurisdiction and reverse. Section 13a (1) provides: . “A carrier or carriers subject to this part, if their rights with respect to the - discontinuance or change ... of the operation or service of any train . . . are súbject to any provision of the constitution or statutes of any State . ; . shall mail to the Governor of each State in which such train . .. . operated, and post in every station, depot or other facility served thereby, notice ... of any such proposed discontinuance or change.” This section, as we read it, required C&EI to give notice in Illinois and Indiana, the only- States in which the line now in controversy has operated. No provision is made in § 13a (1) for notice to States served by connecting railroads which might be affected by a discontinuance. The dissent finds ambiguity in the phrase “such train” in § 13a (1). It is argued that two interpretations of “such train” are possible: either the train of the C&EI between Chicago and Evansville or the “Georgian” between Chicago and Atlanta. By allowing discontinuance under § 13a (1), however, the ICC must have interpreted “such train” to refer to a train operated by one railroad only; and it. was only the Chicago-Evansville discontinuance that was before it at the time. The Commission ruled that: “Copies of the notices were duly served and posted in the manner required by section 13a (1) and our rules and regulations thereunder.” 331 I. C. C. 447, 448. We defer on this issue to the definition of “train” given by the administrative agency which has oversight of the problem. See, e. g., Udall v. Tallman, 380 U. S. 1, 16-17; Bowles v. Seminole Rock Co., 325 U. S. 410, 417-418. It is true that the C&EI and the L&-N functioned in close harmony. Discontinuance of service on one line might have a substantial effect on the other. But this relationship is not unique in railroading. Congress is not unaware of the mutual interdependence of railroads. It designed a federal regulatory system that displaced a state regulatory system when the state system could defeat a carrier’s attempt to discontinue a train. Hence we think it distorts § 13a (1) to treat if. so as to require the giving of notice to States which had no regulatory-power over the carrier. Accordingly, the decisions in No's. 386 and 410 are reversed. Since Nos. 387 and 396 were remanded to the Commission solely because of their relation to Nos. 386 and 410, those decisions are also reversed. The causes aré remanded to the District Court for review of any questions on the merits which may remain unresolved. • It is so ordered. No issue as to the adequacy of the notice given in the L&N proceeding is raised here. The regulation at the time provided for “[a] certificate [stating] that a copy of the notice * * * has been mailed to the Governor and railroad regulatory body of each State in which the subject train or ferry is operated.” (49 CFR § 143.5 (j),-formerly § 43.5 (j) (see 32 Fed. Reg. 5606)). Until 1958 railroad discontinuances required approval of the appropriate regulatory agency in each of the States in which the line operated. Congress knew of the financial difficulties of the railroads and concluded that the problem of discontinuance had to be removed from its parochial setting where state agencies 'too often required the “maintenance of uneconomic and unnecessary services and facilities.” S. Rep. No. 1647, 85th Cong.,'2d Sess., 22. Therefore, Congress vested power over discontinuances in a body aware of the national transportation problems and needs. See generally City of Chicago v. United States, 396 U. S. 162 (1969), and Southern R. Co. v. North Carolina, 376 U. S. 93 (1964). The problem of discontinuance of services as put to the Congress by the Association of American Railroads was described as follows: “[S]uch matters are subject to approval of State regulatory commissions and authority for. such discontinuances or abandonments must be obtained within the scope of statutes or procedures under which those State commissions operate.” Problems of the Railroads, Hearings before the Subcommittee on Surface Transportation of the Senate Committee on Interstate and Foreign Commerce, 85th Cong., 2d Sess., pt. 1, p. 25 (Jan. 13, 1958). The legislation was responsive to that need and may not be easily construed to do more than track the jurisdiction of a' State over the carrier in question. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Chief Justice Rehnquist delivered the opinion of the Court. This case presents the question whether evidence seized in violation of the Fourth Amendment by an officer who acted in reliance on a police record indicating the existence of an outstanding arrest warrant — a record that is later determined to be erroneous — must be suppressed by virtue of the exclusionary rule regardless of the source of the error. The Supreme Court of Arizona held that the exclusionary rule required suppression of evidence even if the erroneous information resulted from an error committed by an employee of the office of the Clerk of Court. We disagree. In January 1991, Phoenix police officer Bryan Sargent observed respondent Isaac Evans driving the wrong way on a one-way street in front of the police station. The officer stopped respondent and asked to see his driver’s license. After respondent told him that his license had been suspended, the officer entered respondent’s name into a computer data terminal located in his patrol car. The computer inquiry confirmed that respondent’s license had been suspended and also indicated that there was an outstanding misdemeanor warrant for his arrest. Based upon the outstanding warrant, Officer Sargent placed respondent under arrest. While being handcuffed, respondent dropped a hand-rolled cigarette that the officers determined smelled of marijuana. Officers proceeded to search his car and discovered a bag of marijuana under the passenger’s seat. The State charged respondent with possession of marijuana. When the police notified the Justice Court that they had arrested him, the Justice Court discovered that the arrest warrant previously had been quashed and so advised the police. Respondent argued that because his arrest was based on a warrant that had been quashed 17 days prior to his arrest, the marijuana seized incident to the arrest should be suppressed as the fruit of an unlawful arrest. Respondent also argued that “[t]he ‘good faith’ exception to the exclusionary rule [was] inapplicable ... because it was police error, not judicial error, which caused the invalid arrest.” App. 5. At the suppression hearing, the Chief Clerk of the Justice Court testified that a Justice of the Peace had issued the arrest warrant on December 13, 1990, because respondent had failed to appear to answer for several, traffic violations. On December 19,1990, respondent appeared before a pro tem Justice of the Peace who entered a notation in respondent’s file to “quash warrant.” Id., at 13. The Chief Clerk also testified regarding the standard court procedure for quashing a warrant. Under that procedure a justice court clerk calls and informs the warrant section of the Sheriff’s Office when a warrant has been quashed. The Sheriff’s Office then removes the warrant from its computer records. After calling the Sheriff’s Office, the clerk makes a note in the individual’s file indicating the clerk who made the phone call and the person at the Sheriff’s Office to whom the clerk spoke. The Chief Clerk testified that there was no indication in respondent’s file that a clerk had called and notified the Sheriff’s Office that his arrest warrant had been quashed. A records clerk from the Sheriff’s Office also testified that the Sheriff’s Office had no record of a telephone call informing it that respondent’s arrest warrant had been quashed. Id., at 42-43. At the close of testimony, respondent argued that the evidence obtained as a result of the arrest should be suppressed because “the purposes of the exclusionary rule would be served here by making the clerks for the court, or the clerk for the Sheriff’s office, whoever is responsible for this mistake, to be more careful about making sure that warrants are removed from the records.” Id., at 47. The trial court granted the motion to suppress because it concluded that the State had been at fault for failing to quash the warrant. Presumably because it could find no “distinction between State action, whether it happens to be the police department or not,” id., at 52, the trial court made no factual finding as to whether the Justice Court or Sheriff’s Office was responsible for the continued presence of the quashed warrant in the police records. A divided panel of the Arizona Court of Appeals reversed because it “believe[d] that the exclusionary rule [was] not intended to deter justice court employees or Sheriff’s Office employees who are not directly associated with the arresting officers or the arresting officers’ police department.” 172 Ariz. 314, 317, 836 P. 2d 1024, 1027 (1992). Therefore, it concluded, “the purpose of the exclusionary rule would not be served by excluding the evidence obtained in this case.” Ibid. The Arizona Supreme Court reversed. 177 Ariz. 201, 866 P. 2d 869 (1994). The court rejected the “distinction drawn by the court of appeals ... between clerical errors committed by law enforcement personnel and similar mistakes by court employees.” Id., at 203, 866 P. 2d, at 871. The court predicted that application of the exclusionary rule would “hopefully serve to improve the efficiency of those who keep records in our criminal justice system.” Id., at 204, 866 P. 2d, at 872. Finally, the court concluded that “[e]ven assuming that deterrence is the principal reason for application of the exclusionary rule, we disagree with the court of appeals that such a purpose would not be served where carelessness by a court clerk results in an unlawful arrest.” Ibid. We granted certiorari to determine whether the exclusionary rule requires suppression of evidence seized incident to an arrest resulting from an inaccurate computer record, regardless of whether police personnel or court personnel were responsible for the record’s continued presence in the police computer. 511 U. S. 1126 (1994). We now reverse. We first must consider whether we have jurisdiction to review the Arizona Supreme Court’s decision. Respondent argues that we lack jurisdiction under 28 U. S. C. § 1257 because the Arizona Supreme Court never passed upon the Fourth Amendment issue and instead based its decision on the Arizona good-faith statute, Ariz. Rev. Stat. Ann. § 13-3925 (1993), an adequate and independent state ground. In the alternative, respondent asks that we remand to the Arizona Supreme Court for clarification. In Michigan v. Long, 463 U. S. 1032 (1983), we adopted a standard for determining whether a state-court decision rested upon an adequate and independent state ground. When “a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.” Id., at 1040-1041. We adopted this practice, in part, to obviate the “unsatisfactory and intrusive practice of requiring state courts to clarify their decisions to the satisfaction of this Court.” Id., at 1041. We also concluded that this approach would “provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal interference, and yet will preserve the integrity of federal law.” Ibid. Justice Ginsburg would overrule Michigan v. Long, supra, because she believes that the rule of that case “impedes the States’ ability to serve as laboratories for testing solutions to novel legal problems.” Post, at 24. The opinion in Long describes the 60-year history of the Court’s differing approaches to the determination whether the judgment of the highest court of a State rested on federal or nonfederal grounds. 463 U. S., at 1038-1040. When we were in doubt, on some occasions we dismissed the writ of certiorari; on other occasions we vacated the judgment of the state court and remanded so that it might clarify the basis for its decision. See ibid. The latter approach did not always achieve the desired result and burdened the state courts with additional work. Ibid. We believe that Michigan v. Long properly serves its purpose and should not be disturbed. Under it, state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution. They also are free to serve as experimental laboratories, in the sense that Justice Brandéis used that term in his dissenting opinion in New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (urging that the Court not impose federal constitutional restraints on the efforts of a State to “serve as a laboratory”). Under our decision today, the State of Arizona remains free to seek whatever solutions it chooses to problems of law enforcement posed by the advent of computerization. Indeed, it is freer to do so because it is disabused of its erroneous view of what the United States Constitution requires. State courts, in appropriate cases, are not merely free to— they are bound to — interpret the United States Constitution. In doing so, they are not free from the final authority of this Court. This principle was enunciated in Cohens v. Virginia, 6 Wheat. 264 (1821), and presumably Justice Ginsburg does not quarrel with it. In Minnesota v. National Tea Co., 309 U. S. 551 (1940), we recognized that our authority as final arbiter of the United States Constitution could be eroded by a lack of clarity in state-court decisions. “It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action. Intelligent exercise of our appellate powers compels us to ask for the elimination of the obscurities and ambiguities from the opinions in such cases. ... For no other course assures that important federal issues, such as have been argued here, will reach this Court for adjudication; that state courts will not be the final arbiters of important issues under the federal constitution; and that we will not encroach on the constitutional jurisdiction of the states.” Id., at 557. We therefore adhere to the standard adopted in Michigan v. Long, supra. Applying that standard here, we conclude that we have jurisdiction. In reversing the Court of Appeals, the Arizona Supreme Court stated that “[w]hile it may be inappropriate to invoke the exclusionary rule where a magistrate has issued a facially valid warrant (a discretionary judicial function) based on an erroneous evaluation of the facts, the law, or both, Leon, 468 U. S. 897 ... (1984), it is useful and proper to do so where negligent record keeping (a purely clerical function) results in an unlawful arrest.” 177 Ariz., at 204, 866 P. 2d, at 872. Thus, the Arizona Supreme Court’s decision to suppress the evidence was based squarely upon its interpretation of federal law. See ibid. Nor did it offer a plain statement that its references to federal law were “being used only for the purpose of guidance, and d[id] not themselves compel the result that [it] reached.” Long, supra, at 1041. The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” We have recognized, however, that the Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands. See United States v. Leon, 468 U. S. 897, 906 (1984). “The wrong condemned by the [Fourth] Amendment is ‘fully accomplished’ by the unlawful search or seizure itself,” ibid, (quoting United States v. Calandra, 414 U. S. 338, 354 (1974)), and the use of the fruits of a past unlawful search or seizure “ ‘work[s] no new Fourth Amendment wrong,’ ” Leon, supra, at 906 (quoting Calandra, supra, at 354). “The question whether the exclusionary rule’s remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.” Illinois v. Gates, 462 U. S. 213, 223 (1983); see also United States v. Havens, 446 U. S. 620, 627-628 (1980); Stone v. Powell, 428 U. S. 465, 486-487 (1976); Calandra, supra, at 348. The exclusionary rule operates as a judicially created remedy designed to safeguard against future violations of Fourth Amendment rights through the rule’s general deterrent effect. Leon, supra, at 906; Calandra, supra, at 348. As with any remedial device, the rule’s application has been restricted to those instances where its remedial objectives are thought most efficaciously served. Leon, supra, at 908; Calandra, supra, at 348. Where “the exclusionary rule does not result in appreciable deterrence, then, clearly, its use ... is unwarranted.” United States v. Janis, 428 U. S. 433, 454 (1976). In Leon, we applied these principles to the context of a police search in which the officers had acted in objectively reasonable reliance on a search warrant, issued by a neutral and detached Magistrate, that later was determined to be invalid. 468 U. S., at 905. On the basis of three factors, we determined that there was no sound reason to apply the exclusionary rule as a means of deterring misconduct on the part of judicial officers who are responsible for issuing warrants. See Illinois v. Krull, 480 U. S. 340, 348 (1987) (analyzing Leon, supra). First, we noted that the exclusionary rule was historically designed “‘to deter police misconduct rather than to punish the errors of judges and magistrates.’ ” Krull, supra, at 348 (quoting Leon, supra, at 916). Second, there was “ ‘no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires the application of the extreme sanction of exclusion.’” Krull, supra, at 348 (quoting Leon, supra, at 916). Third, and of greatest importance, there was no basis for believing that exclusion of evidence seized pursuant to a warrant would have a significant deterrent effect on the issuing judge or magistrate. Krull, supra, at 348. The Leon Court then examined whether application of the exclusionary rule could be expected to alter the behavior of the law enforcement officers. We concluded: “[W]here the officer’s conduct is objectively reasonable, ‘excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that... the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty.’” Leon, supra, at 919-920 (quoting Stone, supra, at 539-540 (White, J., dissenting)). See also Massachusetts v. Sheppard, 468 U. S. 981, 990-991 (1984) (“[Suppressing evidence because the judge failed to make all the necessary clerical corrections despite his assurances that such changes would be made will not serve the deterrent function that the exclusionary rule was designed to achieve”). Thus, we held that the “marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” Leon, supra, at 922. Respondent relies on United States v. Hensley, 469 U. S. 221 (1985), and argues that the evidence seized incident to his arrest should be suppressed because he was the victim of a Fourth Amendment violation. Brief for Respondent 10-12, 21-22. In Hensley, the Court determined that evidence uncovered as a result of a stop pursuant to Terry v. Ohio, 392 U. S. 1 (1968), was admissible because the officers who made the stop acted in objectively reasonable reliance on a flyer that had been issued by officers of another police department who possessed a reasonable suspicion to justify a Terry stop. 469 U. S., at 231. Because the Hensley Court determined that there had been no Fourth Amendment violation, id., at 236, the Court never considered whether the seized evidence should have been excluded. Hensley does not contradict our earlier pronouncements that “[t]he question whether the exclusionary rule’s remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.” Gates, supra, at 223; see also Stone, supra, at 486-487; Calandra, supra, at 348. Respondent also argues that Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560 (1971), compels exclusion of the evidence. In Whiteley, the Court determined that the Fourth Amendment had been violated when police officers arrested Whiteley and recovered inculpatory evidence based upon a radio report that two suspects had been involved in two robberies. Id., at 568-569. Although the “police were entitled to act on the strength of the radio bulletin,” the Court determined that there had been a Fourth Amendment violation because the initial complaint, upon which the arrest warrant and subsequent radio bulletin were based, was insufficient to support an independent judicial assessment of probable cause. Id., at 568. The Court concluded that “an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.” Ibid. Because the “arrest violated [Whiteley’s] constitutional rights under the Fourth and Fourteenth Amendments; the evidence secured as an incident thereto should have been excluded from his trial. Mapp v. Ohio, 367 U. S. 643 (1961).” Id., at 568-569. Although Whiteley clearly retains relevance in determining whether police officers have violated the Fourth Amendment, see Hensley, supra, at 230-231, its precedential value regarding application of the exclusionary rule is dubious. In Whiteley, the Court treated identification of a Fourth Amendment violation as synonymous with application of the exclusionary rule to evidence secured incident to that violation. 401 U. S., at 568-569. Subsequent case law has rejected this reflexive application of the exclusionary rule. Cf. Illinois v. Krull, 480 U. S. 340 (1987); Sheppard, supra; United States v. Leon, 468 U. S. 897 (1984); United States v. Calandra, 414 U. S. 338 (1974). These later cases have emphasized that the issue of exclusion is separate from whether the Fourth Amendment has been violated, see, e. g., Leon, supra, at 906, and exclusion is appropriate only if the remedial objectives of the rule are thought most efficaciously served, see Calandra, supra, at 348. Our approach is consistent with the dissenting Justices’ position in Krull, our only major case since Leon and Sheppard involving the good-faith exception to the exclusionary rule. In that case, the Court found that the good-faith exception applies when an officer conducts a search in objectively reasonable reliance on the constitutionality of a statute that subsequently is declared unconstitutional. Krull, supra, at 346. Even the dissenting Justices in Krull agreed that Leon provided the proper framework for analyzing whether the exclusionary rule applied; they simply thought that “application of Leon’s stated rationales le[d] to a contrary result.” 480 U. S., at 362 (O’Connor, J., dissenting). In sum, respondent does not persuade us to abandon the Leon framework. Applying the reasoning of Leon to the facts of this ease, we conclude that the decision of the Arizona Supreme Court must be reversed. The Arizona Supreme Court determined that it could not “support the distinction drawn ... between clerical errors committed by law enforcement personnel and similar mistakes by court employees,” 177 Ariz., at 203, 866 P. 2d, at 871, and that “even assuming... that responsibility for the error rested with the justice court, it does not follow that the exclusionary rule should be inapplicable to these facts,” ibid. This holding is contrary to the reasoning of Leon, supra; Massachusetts v. Sheppard, supra; and, Krull, supra. If court employees were responsible for the erroneous computer record, the exclusion of evidence at trial would not sufficiently deter fiiture errors so as to warrant such a severe sanction. First, as we noted in Leon, the exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees. See Leon, supra, at 916; see also Krull, supra, at 350. Second, respondent offers no evidence that court employees are in-dined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. See Leon, supra, at 916, and n. 14; see also Krull, supra, at 350-351. To the contrary, the Chief Clerk of the Justice Court testified at the suppression hearing that this type of error occurred once every three or four years. App. 37. Finally, and most important, there is no basis for believing that application of the exclusionary rule in these circumstances will have a significant effect on court employees responsible for informing the police that a warrant has been quashed. Because court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime, see Johnson v. United States, 333 U. S. 10, 14 (1948), they have no stake in the outcome of particular criminal prosecutions. Cf. Leon, supra, at 917; Krull, supra, at 352. The threat of exclusion of evidence could not be expected to deter such individuals from failing to inform police officials that a warrant had been quashed. Cf. Leon, supra, at 917; Krull, supra, at 352. If it were indeed a court clerk who was responsible for the erroneous entry on the police computer, application of the exclusionary rule also could not be expected to alter the behavior of the arresting officer. As the trial court in this case stated: “I think the police officer [was] bound to arrest. I think he would [have been] derelict in his duty if he failed to arrest.” App. 51. Cf. Leon, supra, at 920 (“ ‘Excluding the evidence can in no way affect [the officer’s] future conduct unless it is to make him less willing to do his duty.’ ” quoting Stone, 428 U. S., at 540 (White, J., dissenting)). The Chief Clerk of the Justice Court testified that this type of error occurred “on[c]e every three or four years.” App. 37. In fact, once the court clerks discovered the error, they immediately corrected it, id., at 30, and then proceeded to search their files to make sure that no similar mistakes had occurred, id., at 37. There is no indication that the arresting officer was not acting objectively reasonably when he relied upon the police computer record. Application of the Leon framework supports a categorical exception to the exclusionary rule for clerical errors of court employees. See Leon, supra, at 916-922; Sheppard, supra, at 990-991. The judgment of the Supreme Court of Arizona is therefore reversed, and the case is remanded to that court for proceedings not inconsistent with this opinion. It is so ordered. Petitioner has conceded that respondent's arrest violated the Fourth Amendment. Brief for Petitioner 10. We decline to review that determination. Cf. United States v. Leon, 468 U. S. 897, 905 (1984); Illinois v. Krull, 480 U. S. 340, 357, n. 13 (1987). Justice Ginsburg certainly is correct when she notes that “‘[s]ince Long, we repeatedly have followed [its] “plain statement” requirement.’” Post, at 33 (quoting Harris v. Reed, 489 U. S. 255, 261, n. 7 (1989) (opinion of Blackmun, J.)); see also Illinois v. Rodriguez, 497 U. S. 177, 182 (1990) (opinion of Scalia, J.); Pennsylvania v. Muniz, 496 U. S. 582, 588, n. 4 (1990) (opinion of Brennan, J.); Maryland v. Garrison, 480 U. S. 79, 83-84 (1987) (opinion of Stevens, J.); Caldwell v. Mississippi, 472 U. S. 320, 327-328 (1985) (opinion of Marshall, J.); California v. Carney, 471 U. S. 386, 389, n. 1 (1985) (opinion of Burger, C. J.); Ohio v. Johnson, 467 U. S. 493, 497-498, n. 7 (1984) (opinion of Rehnquist, J.); Oliver v. United States, 466 U. S. 170, 175-176, n. 5 (1984) (opinion of Powell, J.); cf. Coleman v. Thompson, 501 U. S. 722, 740 (1991) (opinion of O’Connor, J.) (declining to expand the Long and Harris presumption to instances “where the relevant state court decision does not fairly appear to rest primarily on federal law or to be interwoven with such law”). Justice Ginsburg acknowledges as much when she states that since Long, “state courts, on remand, have reinstated their prior judgments after clarifying their reliance on state grounds.” Post, at 32 (citing statistics). Surely if we have jurisdiction to vacate and remand a state-court judgment for clarification, post, at 34, n. 7, we also must have jurisdiction to determine whether a state-court judgment is based upon an adequate and independent state ground. See Abie State Bank v. Bryan, 282 U. S. 765, 773 (1931). The Solicitor General, as amicus curiae, argues that an analysis similar to that we apply here to court personnel also would apply in order to determine whether the evidence should be suppressed if police personnel were responsible for the error. As the State has not made any such argument here, we agree that “[t]he record in this case ... does not adequately present that issue for the Court’s consideration.” Brief for United States as Amicus Curiae 13. Accordingly, we decline to address that question. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Murphy delivered the opinion of the Court. Our concern here is with the intervention rights of representatives of railroad employees in a suit brought against the railroad under §16 (12) of the Interstate Commerce Act, 49 U. S. C. § 16 (12). The origin of this suit is to be found in an order issued by the Interstate Commerce Commission on May 16,1922. Chicago Junction Case, 71 I. C. C. 631. See also Chicago Junction Case, 264 U. S. 258. The Commission there approved the purchase by the New York Central Railroad Co. (Central) of all the capital stock of the Chicago River & Indiana Railroad Co. (River Road); it also authorized the leasing to River Road of all the properties of the Chicago Junction Railway Co. (Junction) for 99 years and thereafter, at the lessee’s option, in perpetuity. Among the properties in question were trackage and switching facilities at the Union Stock Yards, Chicago, Illinois, connecting with various trunk lines. Prior to the Commission order, the practice had been for the trunk line railroads to use their own power and crews to move their empty and loaded livestock cars over these tracks to and from the loading places in the Union Stock Yards. For the privilege of so moving their cars, the railroads were charged $1.00 per car, loaded or empty. The Commission made various conditions to its approval of the proposed transactions. The third condition provided: “The present traffic and operating relationships existing between the Junction and River Road and all carriers operating in Chicago shall be continued, in so far as such matters are within the control of the Central.” 71 I. C. C. at 639. This condition is still in effect, the Commission’s decision and order having been found to be valid and binding on all parties in a proceeding in the District Court in 1929. The trunk line railroads have continued to use their own power and crews in moving their livestock cars over the trackage operated by River Road and have paid River Road the amount of $1.00 per car. But on January 25, 1946, Central and River Road notified the railroads that on and after February 1, 1946, the cars would be moved over this trackage by means of the power and crews of River Road and that the handling charge would be $12.96 per outbound loaded car. Soon after this new practice went into effect, the trunk line railroads (appellees herein) brought this suit for preliminary and permanent injunctions under §16 (12) of the Interstate Commerce Act against Central, River Road and Junction. They claimed that the new practice was in violation of the third condition of the 1922 Commission order. They accordingly sought to enjoin the defendants and “their respective officers, agents, representatives, servants, employees and successors,” from disobeying the order, especially the third condition thereof, and to force the defendants to permit them to move their cars with their own power and crews. The Commission was allowed to intervene as a party plaintiff; its intervening complaint also prayed for an injunction against the alleged violation of the third condition by the defendants and their employees. A stipulation of facts was then filed. After describing the change in handling the cars, it pointed out that this change resulted from a settlement between the River Road and the Brotherhood of Railroad Trainmen of a labor dispute over the work involved in these livestock car movements. The Brotherhood was the bargaining agent under the Railway Labor Act for the River Road trainmen. It made a demand, based upon its contract with River Road, that these trainmen be given the work of moving and switching the livestock cars over the River Road trackage. The Brotherhood threatened to call a strike unless this demand was met before 10:30 p. m., January 23, 1946, a threat that was backed by an almost unanimous strike vote of the trainmen. Under this threat, River Road made an agreement with the Brotherhood shortly before the scheduled strike hour, as a result of which the River Road trainmen were to be permitted to move and switch the cars. The notice to the trunk line railroads of this change in practice subsequently followed. The District Court thereupon issued a preliminary injunction as requested. Central, River Road and Junction, and “their respective officers, agents, representatives, employees and successors,” were restrained from disobeying the 1922 Commission order and from violating the third condition of that order and were commanded to permit the trunk line railroads to move their cars over the River Road line with their own power and crews. The court concluded, as a matter of law, that the facts relative to the labor dispute between the Brotherhood and River Road were “irrelevant and immaterial.” Three days after the preliminary injunction became effective, the Brotherhood asked leave to file its special appearance for the purpose of moving to vacate the injunction and to dismiss the proceedings for failure to join the Brotherhood and its members as indispensable parties. This motion was denied. River Road then filed its answer to the original complaint, pointing out that the changed arrangement resulted from the labor dispute with the Brotherhood and contending that this new practice did not violate the 1922 Commission order. The Brotherhood thereafter filed its motion to intervene generally as a party defendant, alleging that the primary purpose of the suit was to nullify its agreement with River Road and to deprive the Brotherhood members of the work they were performing under that agreement and that the Brotherhood members were therefore indispensable parties. The contention was made that the Brotherhood had an unconditional right to intervene by virtue of §17 (11) of the Interstate Commerce Act and Rule 24 (a) (2) of the Federal Rules of Civil Procedure; and 28 U. S. C. § 45a was later added in support of this contention. But the motion to intervene was denied by order, without opinion. The District Court then allowed an appeal to this Court from its order denying intervention. The appellee railroads moved to dismiss the appeal on the ground that such an order was not final and hence was not appealable, the Brotherhood not being entitled to intervene as a matter of right. We postponed further consideration of the question of our jurisdiction to review the order to the hearing of the appeal upon the merits. Ordinarily, in the absence of an abuse of discretion, no appeal lies from an order denying leave to intervene where intervention is a permissive matter within the discretion of the court. United States v. California Canneries, 279 U. S. 553, 556. The permissive nature of such intervention necessarily implies that, if intervention is denied, the applicant is not legally bound or prejudiced by any judgment that might be entered in the case. He is at liberty to assert and protect his interests in some more appropriate proceeding. Having no adverse effect upon the applicant, the order denying intervention accordingly falls below the level of appealability. But where a statute or the practical necessities grant the applicant an absolute right to intervene, the order denying intervention becomes appealable. Then it may fairly be said that the applicant is adversely affected by the denial, there being no other way in which he can better assert the particular interest which warrants intervention in this instance. And since he cannot appeal from any subsequent order or judgment in the proceeding unless he does intervene, the order denying intervention has the degree of definitiveness which supports an appeal therefrom. See Pipe Line Co. v. United States, 312 U. S. 502, 508. Our jurisdiction to consider an appeal from an order denying intervention thus depends upon the nature of the applicant’s right to intervene. If the right is absolute, the order is appealable and we may judge it on its merits. But if the matter is one within the discretion of the trial court and if there is no abuse of discretion, the order is not appealable and we lack power to review it. In other words, our jurisdiction is identified by the necessary incidents of the right to intervene in each particular instance. We must therefore determine the question of our jurisdiction in this case by examining the character of the Brotherhood’s right to intervene in the proceeding brought under § 16 (12) of the Interstate Commerce Act. We start with Rule 24 (a) and (b) of the Federal Rules of Civil Procedure, applicable to a civil proceeding of this type. Rule 24 (a) deals with intervention of right and provides in pertinent part: “Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; . . . .” In contrast, Rule 24 (b) is concerned with permissive intervention and reads as follows: “Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” The Brotherhood claims that as a consequence of either of two federal statutes — § 17 (11) of the Interstate Commerce Act or 28 U. S. C. § 45a — it has an absolute right to intervene within the meaning of Rule 24 (a) (1). It also alleges that it possesses an absolute right within the contemplation of Rule 24 (a) (2), the representation of its interest by existing parties being inadequate and the possibility that it may be bound by a judgment in the action being a real one. No claim to permissive intervention under Rule 24 (b) is made; nor is there a contention that the District Court abused any discretion it might have had. In our view, § 17 (11) of the Interstate Commerce Act does give the Brotherhood an absolute right to intervene in the instant proceeding within the meaning of Rule 24 (a) (1). As set forth in 54 Stat. 916, this portion of the Act reads: “Representatives of employees of a carrier, duly designated as such, may intervene and be heard in any proceeding arising under this Act affecting such employees.” The following considerations make obvious the fact that the Brotherhood meets all the requirements of this provision: First. It is unquestioned that the Brotherhood is the duly designated representative of the River Road trainmen. Second. The right of intervention granted to such a representative by § 17 (11) applies to a court proceeding under § 16 (12) of the Act, the plain language of § 17 (11) extending its reach to “any proceeding arising under this Act.” On this point, however, the appellee railroads contend that § 17 (11) must be confined to proceedings before the Interstate Commerce Commission, to the exclusion of court proceedings. In support of this contention, they point to the fact that § 17 as a whole is primarily concerned with Commission procedure and organization. That fact is emphasized by the heading of § 17 as it appears in the Statutes at Large, 54 Stat. 913, and the United States Code, 49 U. S. C. § 17, a heading that reads: “Commission procedure; delegation of duties; rehearings.” The inference is then made that paragraph (11), with which we are concerned, must be limited by that heading and by the general context of § 17 as a whole. The result of the contention is that the phrase “any proceeding arising under this Act,” as found in paragraph (11), is rewritten by construction to refer only to “any proceeding before the Commission arising under this section.” We cannot sanction such a construction of these words. It is true, of course, that § 17 is concerned primarily with the organization of the Commission and its subdivisions and with the administrative disposition of matters coming within that agency’s jurisdiction. At least ten of the twelve paragraphs of § 17 deal with those matters. And before § 17 was cast into its present form in 1940, all five of its paragraphs related exclusively to those matters. Congress rewrote the section when it enacted the Transportation Act of 1940, 54 Stat. 898, continuing and modifying previous provisions and consolidating and including matters which had formerly been scattered throughout the Act. At the same time, however, it was expressly recognized that certain paragraphs were being added which were entirely new, paragraphs which went beyond purely administrative matters. Thus the pertinent committee reports stated that “A new paragraph (9) is included providing that orders of a division, an individual Commissioner, or a board shall be subject to judicial review as in the case of full Commission orders, after an application for rehearing has been made and acted upon.” And as to paragraph (11), it was said that “A new paragraph is added at the end of section 17 providing that representatives of employees of a carrier may intervene and be heard in any proceedings arising under part I affecting such employees.” By such language in their reports, the framers of § 17 recognized the obvious fact that certain provisions of that section deal with something more than might be indicated by the heading. That the heading of § 17 fails to refer to all the matters which the framers of that section wrote into the text is not an unusual fact. That heading is but a short-hand reference to the general subject matter involved. While accurately referring to the subjects of Commission procedure and organization, it neglects to reveal that § 17 also deals with judicial review of administrative orders and with intervention by employee representatives. But headings and titles are not meant to take the place of the detailed provisions of the text. Nor are they necessarily designed to be a reference guide or a synopsis. Where the text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner; to attempt to refer to each specific provision would often be ungainly as well as useless. As a result, matters in the text which deviate from those falling within the general pattern are frequently unreflected in the headings and titles. Factors of this type have led to the wise rule that the title of a statute and the heading of a section cannot limit the plain meaning of the text. United States v. Fisher, 2 Cranch 358, 386; Cornell v. Coyne, 192 U. S. 418, 430; Strathearn S. S. Co. v. Dillon, 252 U. S. 348, 354. For interpretative purposes, they are of use only when they shed light on some ambiguous word or phrase. They are but tools available for the resolution of a doubt. But they cannot undo or limit that which the text makes plain. Here the meaning of § 17 (11) is unmistakable on its face. There is a simple, unambiguous reference to “any proceeding arising under this Act” or, as the House committee paraphrased it, to “any proceedings arising under part I.” There is not a word which would warrant limiting this reference so as to allow intervention only in proceedings arising under § 17 or in proceedings before the Commission. The proceedings mentioned are those which arise under this Act, an Act under which both judicial and administrative proceedings may arise. The instant case is a ready illustration of a judicial proceeding arising under this Act; a suit of this nature is authorized solely by § 16 (12) of the Act. Hence it is a proceeding to which the right of intervention may attach by virtue of §17(11). Nor do we perceive any reason of statutory policy why the framers of § 17 (11) should have wished to confine the right of intervention by employee representatives to proceedings before the Commission. Occasions may arise, as in this case, where the employee representatives have no interest in intervening in the original administrative proceeding, but where they have a very definite interest in intervening in a subsequent judicial proceeding arising under the Act. When the framers have used language which covers both types of proceedings, we would be unjustified in formulating some policy which they did not see fit to express to limit that language in any way. Third. This is a proceeding arising under the Act which affects the employees represented by the Brotherhood. Nothing could make this plainer than the fact that direct injunctive relief was sought and obtained against these employees. The appellee railroads sued to enjoin River Road and its employees from disobeying the third condition of the 1922 Commission order. It was alleged that this condition required River Road and its employees to permit the railroads to use their own power and crews in moving cars over the River Road line. Yet that was precisely the subject matter of the conflict between River Road and the Brotherhood, resulting in the insertion of important provisions in the contract between them. If the Commission order did require the River Road employees to forego operating the livestock cars, their contract rights with River Road were affected in a very real sense. Acts done by the employees in performance of this contract obviously prompted this suit; and any such acts performed after the issuance of an injunction might give rise to contempt action. It is thus impossible to say that this proceeding is not one “affecting such employees” within the meaning of§ 17 (11). Since all the conditions of § 17 (11) have been satisfied in this case, the only question that remains is whether the Brotherhood is thereby accorded a permissive or an absolute right to intervene. The language of § 17 (11) is in terms of “may intervene and be heard,” which might be construed as giving only a discretionary right. But our view, as we have indicated, is that once the requirements of § 17 (11) have been met, the employees’ representative acquires an absolute right of intervention. Some statutes speak of intervention “as of right.” Thus where suit is brought by or against the United States to enforce or set aside a Commission order, the Commission or the parties in interest to the proceeding before the Commission “may appear as parties thereto ... as of right.” 28 U. S. C. § 45a. In such a case, the right to intervene is absolute and unconditional. Sprunt & Son v. United States, 281 U. S. 249, 255. No less absolute or unconditional is the right to intervene under § 17 (11), which permits intervention where the employees are affected by the proceeding. To be sufficiently affected within the meaning of this provision requires that the employees be prejudiced or bound by any judgment that might be entered in the case, as is the situation relative to the River Road employees. Once it is clear that an effect of that degree is present, however, there is no room for the operation of a court’s discretion. Whether the employees’ interests should be asserted or defended in a proceeding where those interests are at stake is a question to be decided by the employees’ representative, not by the court. The statutory term “may intervene” thus means “may intervene if the employees’ representative so chooses” rather than “may intervene in the discretion of the court.” And if the representative does choose to intervene, it may do so as a matter of right within the meaning of Rule 24 (a) (1) of the Federal Rules of Civil Procedure. Such is this case. We thus conclude that § 17 (11) gives the Brotherhood an absolute right to intervene in this proceeding, making it unnecessary to discuss whether, and to what extent, the Brotherhood would have had such a right apart from § 17 (11). It follows that we have jurisdiction to consider the appeal on its merits. And in the exercise of that jurisdiction, we reverse the judgment of the District Court denying leave to the Brotherhood to intervene. Reversed. Baltimore & O. R. Co. v. United States (unreported), United States District Court for the Northern District of Illinois, Eastern Division, Equity No. 3427, January 15,1929. The court approved the Commission order as amended in 150 I. C. C. 32. That amendment is not germane to this case. The Commission based its complaint upon § 5 (8) of the Interstate Commerce Act, 49 U. S. C. § 5 (8), which authorizes the Commission to seek, and grants jurisdiction to the federal district courts to issue, injunctive or mandatory relief to restrain violation of or compel obedience to an order issued under § 5. On appeal by Junction, the Seventh Circuit Court of Appeals reversed the decree as to Junction, holding that Junction had no control over and nothing to do with the acts complained of by the appellees. Baltimore & O. R. Co. v. Chicago Junction R. Co., 156 F. 2d 357. 54 Stat. 916, 49 U. S. C. § 17 (11). See also Ex parte Cutting, 94 U. S. 14; Credits Commutation Co. v. United States, 177 U. S. 311; Ex parte Leaf Tobacco Board of Trade, 222 U. S. 578; In re Engelhard, 231 U. S. 646; City of New York v. Consolidated Gas Co., 253 U. S. 219; New York City v. New York Telephone Co., 261 U. S. 312. As it appears in the United States Code, 49 U. S. C. § 17 (11), this paragraph reads: “Representatives of employees of a carrier, duly designated as such, may intervene and be heard in any proceeding arising under this chapter and chapters 8 and 12 of this title affecting such employees.” The words “this chapter” refer to Part I of the Interstate Commerce Act, which embodies the original statute known by that name prior to its division into parts. Chapter 8 relates to Part II of the Interstate Commerce Act, originally known as the Motor Carrier Act of 1935. Section 305 (h) of Part II is a cross-reference to § 17 of Part I: “All the provisions of section 17 of this title shall apply to all proceedings under this chapter.” Chapter 12 is the equivalent of Part III of the Interstate Commerce Act, which deals with water carriers. Section 916 (a) is also a cross-reference to § 17 of Part I: “The provisions of section 12 and section 17 of chapter 1 of this title and sections 46-48 of this title shall apply with full force and effect in the administration and enforcement of this chapter.” H. Rep. No. 1217, 76th Cong., 1st Sess., p. 13; H. Rep. No. 2832, 76th Cong., 3d Sess., p. 72. H. R. No. 2016, 76th Cong., 3d Sess., p. 67; H. Rep. No. 2832, 76th Cong., 3d Sess., p. 72. H. Rep. No. 1217,76th Cong., 1st Sess., p. 15. H. Rep. No. 1217,76th Cong., 1st Sess., p. 15. Section 17 (11), by referring to proceedings arising under “this Act,” also affects judicial and administrative proceedings arising under Parts II and III of the Act. See note 6, supra. Section 16 (12) is labeled “Proceedings to enforce orders other than for payment of money.” 49 U. S. C. § 16 (12). It provides that if any carrier fails to obey a Commission order other than for the payment of money, the Commission, any injured party or the United States may apply to a federal district court for the enforcement of the order. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

G

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Frankfurter delivered the opinion of the Court. William Brandhove brought this action in the United States District Court for the Northern District of California, alleging that he had been deprived of rights guaranteed by the Federal Constitution. The defendants are Jack B. Tenney and other members of a committee of the California Legislature, the Senate Fact-Finding Committee on Un-American Activities, colloquially known as the Tenney Committee. Also named as defendants are the Committee and Elmer E. Robinson, Mayor of San Francisco. The action is based on §§43 and 47 (3) of Title 8 of the United States Code. These sections derive from one of the statutes, passed in 1871, aimed at enforcing the Fourteenth Amendment. Act of April 20, 1871, c. 22, §§ 1, 2,17 Stat. 13. Section 43 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” R. S. § 1979, 8 U. S. C. § 43. Section 47 (3) provides a civil remedy against “two or more persons” who may conspire to deprive another of constitutional rights, as therein defined. Reduced to its legal essentials, the complaint shows these facts. The Tenney Committee was constituted by a resolution of the California Senate on June 20, 1947. On January 28, 1949, Brandhove circulated a petition among members of the State Legislature. He alleges that it was circulated in order to persuade the Legislature not to appropriate further funds for the Committee. The petition charged that the Committee had used Brand-hove as a tool in order “to smear Congressman Franck R. Havenner as a ‘Red’ when he was a candidate for Mayor of San Francisco in 1947; and that the Republican machine in San Francisco and the campaign management of Elmer E. Robinson, Franck Havenner’s opponent, conspired with the Tenney Committee to this end.” In view of the conflict between this petition and evidence previously given by Brandhove, the Committee asked local prosecuting officials to institute criminal proceedings against him. The Committee also summoned Brandhove to appear before them at a hearing held on January 29. Testimony was there taken from the Mayor of San Francisco, allegedly a member of the conspiracy. The plaintiff appeared with counsel, but refused to give testimony. For this, he was prosecuted for contempt in the State courts. Upon the jury’s failure to return a verdict this prosecution was dropped. After Brandhove refused to testify, the Chairman quoted testimony given by Brand-hove at prior hearings. The Chairman also read into the record a statement concerning an alleged criminal record of Brandhove, a newspaper article denying the truth of his charges, and a denial by the Committee’s counsel — who was absent — that Brandhove’s charges were true. Brandhove alleges that the January 29 hearing “was not held for a legislative purpose,” but was designed “to intimidate and silence plaintiff and deter and prevent him from effectively exercising his constitutional rights of free speech and to petition the Legislature for redress of grievances, and also to deprive him of the equal protection of the laws, due process of law, and of the enjoyment of equal privileges and immunities as a citizen of the United States under the law, and so did intimidate, silence, deter, and prevent and deprive plaintiff.” Damages of $10,000 were asked “for legal counsel, traveling, hotel accommodations, and other matters pertaining and necessary to his defense” in the contempt proceeding arising out of the Committee hearings. The plaintiff also asked for punitive damages. The action was dismissed without opinion by the District Judge. The Court of Appeals for the Ninth Circuit held, however, that the complaint stated a cause of action against the Committee and its members. 183 F. 2d 121. We brought the case here because important issues are raised concerning the rights of individuals and the power of State legislatures. 340 U. S. 903. We are again faced with the Reconstruction legislation which caused the Court such concern in Screws v. United States, 325 U. S. 91, and in the Williams cases decided this term, ante, pp. 70, 97. But this time we do not have to wrestle with far-reaching questions of constitutionality or even of construction. We think it is clear that the legislation on which this action is founded does not impose liability on the facts before us, once they are related to the presuppositions of our political history. The privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries. As Parliament achieved increasing independence from the Crown, its statement of the privilege grew stronger. In 1523, Sir Thomas More could make only a tentative claim. Roper, Life of Sir Thomas More, in More’s Utopia (Adams ed.) 10. In 1668, after a long and bitter struggle, Parliament finally laid the ghost of Charles I, who had prosecuted Sir John Elliot and others for “seditious” speeches in Parliament. Proceedings against Sir John Elliot, 3 How. St. Tr., 294, 332. In 1689, the Bill of Rights declared in unequivocal language: “That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.” 1 Wm. & Mary, Sess. 2, c. II. See Stockdale v. Hansard, 9 Ad. & El. 1, 113-114 (1839). Freedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation. It was deemed so essential for representatives of the people that it was written into the Articles of Confederation and later into the Constitution. Article V of the Articles of Confederation is quite close to the English Bill of Rights: “Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress . . . .” Article I, § 6, of the Constitution provides: . . for any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place.” The reason for the privilege is clear. It was well summarized by James Wilson, an influential member of the Committee of Detail which was responsible for the provision in the Federal Constitution. “In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence.” II Works of James Wilson (Andrews ed. 1896) 38. See the statement of the reason for the privilege in the Report from the Select Committee on the Official Secrets Acts (House of Commons, 1939) xiv. The provision in the United States Constitution was a reflection of political principles already firmly established in the States. Three State Constitutions adopted before the Federal Constitution specifically protected the privilege. The Maryland Declaration of Rights, Nov. 3, 1776, provided: “That freedom of speech, and debates or proceedings, in the legislature, ought not to be impeached in any other court or judicature.” Art. VIII. The Massachusetts Constitution of 1780 provided: “The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever.” Part The First, Art. XXI. Chief Justice Parsons gave the following gloss to this provision in Coffin v. Coffin, 4 Mass. 1, 27 (1808): “These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office; and I would define the article as securing to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules.” The New Hampshire Constitution of 1784 provided: “The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any action, complaint, or prosecution, in any other court or place whatsoever.” Part I, Art. XXX. It is significant that legislative freedom was so carefully-protected by constitutional framers at a time when even Jefferson expressed fear of legislative excess. For the loyalist executive and judiciary had been deposed, and the legislature was supreme in most States during and after the Revolution. “The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.” Madison, The Federalist, No. XLVIII. As other States joined the Union or revised their Constitutions, they took great care to preserve the principle that the legislature must be free to speak and act without fear of criminal and civil liability. Forty-one of the forty-eight States now have specific provisions in their Constitutions protecting the privilege. “If two or more persons in any State or Territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice-President, or as a member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.” Did Congress by the general language of its 1871 statute mean to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here? Did it mean to subject legislators to civil liability for acts done within the sphere of legislative activity? Let us assume, merely for the moment, that Congress has constitutional power to limit the freedom of State legislators acting within their traditional sphere. That would be a big assumption. But we would have to make an even rasher assumption to find that Congress thought it had exercised the power. These are difficulties we cannot hurdle. The limits of §§ 1 and 2 of the 1871 statute — now § § 43 and 47 (3) of Title 8 — were not spelled out in debate. We cannot believe that Congress — itself a staunch advocate of legislative freedom — would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us. We come then to the question whether from the pleadings it appears that the defendants were acting in the sphere of legitimate legislative activity. Legislatures may not of course acquire power by an unwarranted extension of privilege. The House of Commons’ claim of power to establish the limits of its privilege has been little more than a pretense since Ashby v. White, 2 Ld. Raym. 938, 3 id. 320. This Court has not hesitated to sustain the rights of private individuals when it found Congress was acting outside its legislative role. Kilbourn v. Thompson, 103 U. S. 168; Marshall v. Gordon, 243 U. S. 521; compare McGrain v. Daugherty, 273 U. S. 135, 176. The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motives. The holding of this Court in Fletcher v. Peck, 6 Cranch 87, 130, that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned. See cases cited in Arizona v. California, 283 U. S. 423, 455. Investigations, whether by standing or special committees, are an established part of representative government. Legislative committees have been charged with losing sight of their duty of disinterestedness. In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses. The courts should not go beyond the narrow confines of determining that a committee’s inquiry may fairly be deemed within its province. To find that a committee’s investigation has exceeded the bounds of legislative power it must be obvious that there was a usurpation of functions exclusively vested in the Judiciary or the Executive. The present case does not present such a situation. Brand-hove indicated that evidence previously given by him to the committee was false, and he raised serious charges concerning the work of a committee investigating a problem within legislative concern. The Committee was entitled to assert a right to call the plaintiff before it and examine him. It should be noted that this is a case in which the defendants are members of a legislature. Legislative privilege in such a case deserves greater respect than where an official acting on behalf of the legislature is sued or the legislature seeks the affirmative aid of the courts to assert a privilege. In Kilbourn v. Thompson, supra, this Court allowed a judgment against the Sergeant-at-Arms, but found that one could not be entered against the defendant members of the House. We have only considered the scope of the privilege as applied to the facts of the present case. As Mr. Justice Miller said in the Kilbourn case: “It is not necessary to decide here that there may not be things done, in the one House or the other, of an extraordinary character, for which the members who take part in the act may be held legally responsible.” 103 U. S. at 204. We conclude only that here the individual defendants and the legislative committee were acting in a field where legislators traditionally have power to act, and that the statute of 1871 does not create civil liability for such conduct. The judgment of the Court of Appeals is reversed and that of the District Court affirmed. Reversed. R. S. § 1980 (par. Third), 8 U. S. C. § 47 (3): The Court of Appeals affirmed the dismissal as to Robinson on the ground that he was not acting under color of law and that the complaint did not show him to be a member of a conspiracy. We have denied a petition to review this decision. 341 U. S. 936. In two State Constitutions of 1776, the privilege was protected by general provisions preserving English law. See S. C. Const., 1776, Art. VII; N. J. Const., 1776, Art. XXII. Compare N. C. Const., 1776, § XLV. Three other of the original States made specific provision to protect legislative freedom immediately after the Federal Constitution was adopted. See Pa. Const., 1790, Ar.t. I, § 17; Ga. Const., 1789, Art. I, § 14; Del. Const., 1792, Art. II, § 11. Connecticut and Rhode Island so provided in the first constitutions enacted to replace their uncodi-fied organic law. Conn. Const., 1818, Art. Third, § 10; R. I. Const., 1842, Art. IV, § 5. In New York, the Bill of Rights passed by the legislature on January 26, 1787, provided: “That the freedom of speech and debates, and proceedings in the senate and assembly, shall not be impeached or questioned in any court or place out of the senate or assembly.” In Virginia, as well as in the other colonies, the assemblies had built up a strong tradition of legislative privilege long before the Revolution. See Clarke, Parliamentary Privilege in the American Colonies (1943), passim, especially 70 and 93 et seq. See Jefferson, Notes on the State of Virginia (3d Am. ed. 1801), 174^175. The Notes were written in 1781. See also, a letter from Jefferson to Madison, March 15,1789, to be published in a forthcoming volume of The Papers of Thomas Jefferson (Boyd ed.): “The tyranny of the legislatures is the most formidable dread at present, and will be for long years.” As to the political currents at the time the United States Constitution and the State Constitutions were formulated, see Corwin, The Progress of Constitutional Theory between the Declaration of Independence and the Meeting of the Philadelphia Convention, 30 Am. Hist. Rev. 511 (1925). Ala. Const., Art. IV, § 56; Ariz. Const., Art. IV, 2, § 7; Ark. Const., Art. V, § 15; Colo. Const., Art. V, § 16; Conn. Const., Art. Third, § 10; Del. Const., Art. II, § 13; Ga. Const., Art. Ill, § VII, par. Ill; Idaho Const., Art. Ill, § 7; Ill. Const., Art. IV, § 14; Ind. Const., Art. 4, §8; Kan. Const., Art. 2, §22; Ky. Const., §43; La. Const., Art. Ill, § 13; Me. Const., Art. IV, Pt. Third, §8; Md. D. R. 10, Const., Art. Ill, § 18; Mass. Const., Pt. First, Art. 21; Mich. Const., Art. V, §8; Minn. Const., Art. IV, §8; Mo. Const., Art. Ill, § 19; Mont. Const., Art. V, § 15; Neb. Const., Art. Ill, § 26; N. H. Const., Pt. First, Art. 30th; N. J. Const., Art. IV, § IV, par. 8; N. M. Const., Art. IV, § 13; N. Y. Const., Art. Ill, § 11; N. D. Const., Art. II, § 42; Ohio Const., Art. II, § 12; Okla. Const., Art. V, § 22; Ore. Const., Art. IV, § 9; Pa. Const., Art. II, § 15; R. I. Const., Art. IV, § 5; S. D. Const., Art. Ill, §11; Tenn. Const., Art. II, §13; Tex. Const., Art. Ill, §21; Utah Const., Art. VI, §8; Vt. Const., c. I, Art. 14th; Va. Const., Art. IV, §48; Wash. Const., Art. II, § 17; W. Va. Const., Art. VI, §17; Wis. Const., Art. IV, §16; Wyo. Const., Art. 3, § 16. Compare Iowa Const., Art. Ill, § 10; N. C. Const., Art. II, § 17 (right of legislator to protest action of legislature). See also, Cal. Const., Art. IV, §11; Iowa Const., Art. Ill, §11; Miss. Const., Art. 4, §48; Nev. Const., Art. IV, §11; S. C. Const., Art. Ill, § 14 (freedom from arrest). Only the Florida Constitution has no provision concerning legislative privilege. See Wilson, Congressional Government (1885), 303: “It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function.” See Dilliard, Congressional Investigations: The Role of the Press, 18 U. of Chi. L. Rev. 585. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Opinion of the Court by Mr. Justice Douglas, announced by Mr. Chief Justice Burger. This is an appeal from a judgment of a three-judge District Court, 28 U. S. C. § 1253, which held invalid an order of the Interstate Commerce Commission promulgating a car Service Order under § 1 (15) of the Interstate Commerce Act, as amended, 41 Stat. 476, 49 U. S. C. § 1 (15). Oregon Pacific Industries v. United States, 365 F. Supp. 609 (Ore. 1973). Lumber is often moved to market on a wholesalers' sale-in-transit schedule. Cars are sent to hold points, where in time reconsignment orders are received for shipment to customers of wholesalers. The tariffs allow indefinite holding, subject to demurrage charges for detention in excess of 24 hours, but the Commission found that these demurrage charges never discouraged shippers from lengthy holding of cars. In 1973 there was, according to the Commission, a transportation “emergency” which required “immediate action to promote car service in the interest of the public and the commerce of the people.” Accordingly, on May 8, 1973, the Commission, sua sponte, without notice and hearing, entered its Service Order No. 1134 which limited the hold time at reconsignment points to five days (120 hours), exclusive of Saturdays, Sundays, and holidays. If the lumber cars were held at reconsignment points longer than five working days, the reconsignment privilege would be lost and the shippers would be subject to local or joint tariff rates from the point of origin to the hold point, and from the hold point to the ultimate destination. The District Court held that there were four, categories of emergency action which the Commission could take under § 1 (15): “(a) to suspend . . . rules, regulations, or practices then established with respect to car service . . . , “(b) to make . . . directions with respect to car service ... during such emergency as ... will best promote . . . service . . . [and provide compensation as between carriers]. “(c) to require . . . common use of terminals, . . . and ■ “(d) to give directions for preference or priority in transportation . . . The District Court held that the Commission’s authority under (b), (c), or (d) would not support the order in this case and that the order could be sustained, if at all, only under (a). It concluded that (a) was not adequate since the challenged order did not “suspend” any rule or regulation “with respect to car service.” It reasoned that the order “condones the practice of sales-in-transit” for an indefinite time but requires shippers employing the practice to pay a higher rate to the carriers than the demurrage rate under the prior order. That was, in its view, a rate order having no place under § 1 (15), which gives the Commission power to act sua sponte in an “emergency” in a narrow group of cases. 365 F. Supp., at 612. The District Court pointed out that § 1 (10) defines “car service” as “the use . . . movement . . . and return of . . . cars . . . used in the transportation of property . . . by any carrier by railroad”; and it emphasized that “ 'car service’ connotes the use to which the vehicles of transportation are put [by a carrier]; not the transportation service rendered by means of them,” 365 F. Supp., at 611 ; Peoria & P. U. R. Co. v. United States, 263 U. S. 528, 533. We emphasized in United States v. Allegheny-Ludlum Steel Corp., 406 U. S. 742, 743, that car service rules dealt with the management of “a single common pool” of cars “used by all roads,” and that they pertain to railroad use of cars. Since “railroad use” involves shippers, we think the District Court read § 1 (15) too narrowly. We noted in Allegheny-Ludlum that § 1 (15) traces back to the Esch Car Service Act of 1917, 40 Stat 101. 406 U. S., at 744. The use of freight cars as warehouses — the practice which prompted the Commission to act in the present case — was one of the evils at which the original Car Service Act was aimed. Mr. Esch, sponsor of the legislation, said: “Another cause of car shortage is the holding of cars on the part of shippers themselves, using the car as a species of warehouse, instead of promptly unloading it. I think that is quite a universal evil throughout the United States, but it is due in some measure to the lack of warehouse and elevator facilities at the terminals. “Mr. MADDEN. If the gentleman will yield to me, I would like to ask him one question. I would like to ask the gentleman if there is any provision in this bill to compel railroad companies to pay demurrage to the shippers in case they failed to furnish the cars within the time they were required for the shipment of the goods? “Mr. ESCH. The gentleman means reciprocal demurrage? “Mr. MADDEN. This gives the Interstate Commerce Commission the right to authorize them to charge certain demurrage of the shipper if he fails to unload the car. Ought not the shipper to have a claim against the railroad company in case they fail to furnish the cars? “Mr. ESCH. I have no doubt under the proposed amendment, in case of emergency, the commission could make any rules or regulations that they saw fit that would promote the transit of freight, because the power is very broad, and necessarily so.” And the Reports make clear that one aim of the Act was “to the end that the public may receive the best possible service in transportation.” Car shortages, it was found, resulted in short supplies of basic foods in the markets “with attendant high prices.” The interests of shippers and consumers — not the carriers alone— were very much in the forefront. As we have noted, Peoria & P. U. R. Co., supra, emphasized that the car service authority extends to the “use” of cars and not to a “transportation service,” but there the issue was whether one carrier was bound to perform switching services for another carrier. The Court held that it was not; power over the “use” of cars, however, was left undisturbed. In this connection it is obvious that a shipper by rail does not “rent” a vehicle as do shippers by truck. The cars are all “used” under the management of carriers, who naturally receive directions or requests from shippers. The cars cannot be used efficiently to serve the needs of shippers and consumers if they are used not as carriers but as warehouses. In Turner Lumber Co.v. Chicago, M. & St. P. R. Co., 271 U. S. 259, demurrage to prevent “undue detention” of cars “loaded with lumber held for reconsignment” was fixed by the Commission without notice. The Court, speaking through Mr. Justice Brandéis, upheld the charge saying: “All demurrage charges have a double purpose. One is to secure compensation for the use of the car and of the track which it occupies. The other is to promote car efficiency by providing a deterrent against undue detention.” Id., at 262. In Iversen v. United States, 63 F. Supp. 1001, aff'd per curiam, 327 U. S. 767, the Commission entered a car Service Order limiting reconsignment privileges to a specific number of days and providing that cars held in excess of that time would be subject to the sum of the local rates from origin to reconsignment point to destination. It was held that the demurrage item was a “rule” respecting “car service” within the meaning of § 1 (15). The holding in Iversen was implicit in the holding in Turner. The District Court suggested that the .Service Order was invalid because its effect was to “fix” rates and charges during an emergency — a power not covered by § 1 (15). That precise point was raised in Iversen, 63 F. Supp., at 1006, and the ruling, which we affirmed, was contra. Suspending or changing demurrage charges may increase the transportation charges; but, as Turner makes clear, demurrage charges have a dual purpose; and it is enough if one of them is a deterrent against undue detention of cars. As we said in Turner, at times the cause of “undue detention” of freight cars is that they are used “as a place of storage, either at destination or at reconsignment points, for a long period while seeking a market for the goods stored therein.” 271 U. S., at 262. The substitution of tariff rates already fixed and on file for the old demurrage rate is not an unreasonable method of accelerating the movement of freight cars. That was the aim and purpose of the present Service Order; and it was promulgated in an “emergency” which the Commission, using its expertise, found to exist. We cannot say the order was unreasonable on the record before us. Insofar as appellees raise questions of unfairness, they are precluded by the opinions of Mr. Justice Holmes in Avent v. United States, 266 U. S. 127, and of Mr. Justice Brandeis in Turner Lumber Co. v. Chicago, M. & St. P. R. Co., supra, which disposed of due process questions under § 1 (15). We therefore hold that the Commission had the power to promulgate Service Order No. 1134 summarily. Reversed. This Service Order by its original terms was to expire July 31, 1973, unless otherwise modified or changed by the Commission. 38 Fed. Reg. 12606. The Commission twice extended the deadline, id., at 19831, 31681, and on April 11, 1974, made it effective “until further order of the Commission,” 39 Fed. Reg. 13971, on each occasion having found “good cause” for the extension. The April 11 amendment also suspended the Service Order indefinitely, effective April 15, 1974. The Solicitor General without citation of any authority expressed his view that the District Court’s decision was correct and moved that its judgment be affirmed. The Western Railroad Traffic Association has filed an amicus brief taking the opposing view. Section 1 (15), 49 U. S. C. § 1 (15), provides: “Whenever the Commission is of opinion that shortage of equipment, congestion of traffic, or other emergency requiring immediate action exists in any section of the country, the Commission shall have, and it is hereby given, authority, either upon complaint or upon its own initiative without complaint, at once, if it so orders, without answer or other formal pleading by the interested carrier or carriers, and with or without notice, hearing, or the making or filing of a report, according as the Commission may determine: (a) to suspend the operation of any or all rules, regulations, or practices then established with respect to car service for such time as may be determined by the Commission; (b) to make such just and reasonable directions with respect to car service without regard to the ownership as between carriers of locomotives, cars, and other vehicles, during such emergency as in its opinion will best promote the service in the interest of the public and the commerce of the people, upon such terms of compensation as between the carriers as they may agree upon, or, in the event of their disagreement, as the Commission may after subsequent hearing find to be just and reasonable; (c) to require such joint or common use of terminals, including main-line track or tracks for a reasonable distance outside of such terminals, as in its opinion will best meet the emergency and serve the public interest, and upon such terms as between the carriers as they may agree upon, or, in the event of their disagreement, as the Commission may after subsequent hearing find to be just and reasonable; and (d) to give directions for preference or priority in transportation, embargoes, or movement of traffic under permits, at such time and for such periods as it may determine, and to modify, change, suspend, or annul them. In time of war or threatened war the President may certify to the Commission that it is essential to the national defense and security that certain traffic shall have preference or priority in transportation, and the Commission shall, under the power herein conferred, direct that such preference or priority be afforded.” See H. R. Rep. No. 18, 65th Cong., 1st Sess.; S. Rep. No. 43, 65th Cong., 1st Sess. 55 Cong. Reo. 2020-2021. S. Rep., supra, n. 3, at 2. H. R. Rep., supra, n. 3, at 1. Iversen v. United States, involved four Service Orders of the Commission. Service Order No. 396 in that case was on all fours with the one in the instant case. In Iversen, Judge Prettyman, speaking for a three-judge District Court, said: “[Demurrage charges are in part compensation and in part penalty; ... in full character they are neither, not being rates as that term is used in connection with rate-making, nor penalties as that term is used in respect to penal impositions. They are sui generis. Historically, textually, in purpose and in content, they are an integral part of the established rules and regulations relating to the use and movement of cars. From the beginning they have been sustained as rules and regulations. They could not have been sustained as carrier charges or as penalties. As an integral part of the rules and regulations in respect to car service, they fall within the provisions of Section 1 (15) of the Interstate Commerce Act. It follows that when an emergency exists, the Commission can, without hearing, issue, effective for a limited time, orders in respect to these charges.” 63 F. Supp., at 1005-1006. The District Court distinguished Turner on the ground that it involved a “demurrage tariff duly filed,” 271 U. S., at 260. But it was filed by reason of § 1 (15) during an “emergency” and, as in the present case, “without notice.” 271 U. S., at 260. A car Service Order of the Commission issued July 25, 1922, because of an “emergency” without notice and hearing was sustained in Avent v. United States, 266 U. S. 127, against the claim that the order violated the Fifth Amendment. This is the only question we decide today. The Commission’s present obligation with respect to the promulgation of car service rules, the issue that concerns our Brother Powell, has not been raised by counsel here or in the court below, and, accordingly, is a matter we do not address. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Black delivered the opinion of the Court. Cranford P. Walker, owner of Patent No. 2,156,519, and the other respondents, licensees under the patent, brought this suit in a Federal District Court alleging that petitioner, Halliburton Oil Well Cementing Company, had infringed certain of the claims of the Walker patent. The District Court held the claims in issue valid and infringed by Halliburton. The Circuit Court of Appeals affirmed, 146 F. 2d 817, and denied Halliburton’s petition for rehearing. 149 F. 2d 896. Petitioner’s application to this Court for certiorari urged, among other grounds, that the claims held valid failed to make the “full, clear, concise, and exact” description of the alleged invention required by Rev. Stat. 4888, 35 U. S. C. § 33, as that statute was interpreted by us in General Electric Co. v. Wabash Appliance Corp., 304 U. S. 364. This statutory requirement of distinctness and certainty in claims is important in patent law. We granted certiorari to consider whether it was correctly applied in this case. 326 U. S. 705. The patent in suit was sustained as embodying an improvement over a past patent of Lehr and Wyatt (No. 2,047,974) upon an apparatus designed to facilitate the pumping of oil out of wells which do not have sufficient natural pressures to force the oil to gush. An outline of the background and setting of these patents is helpful to an understanding of the problem presented. In order to operate a pump in an oil well most efficiently, cheaply, and with the least waste, the pump must be placed in an appropriate relationship to the fluid surface of the oil. Properly to place the pump in this relationship requires knowledge of the distance from the well top to the fluid surface. At least by the latter 1920’s problems of waste and expense in connection with non-gusher oil wells pressed upon the industry. See Railroad Comm’n of Texas v. Rowan & Nichols Oil Co., 310 U. S. 573; Burford v. Sun Oil Co., 319 U. S. 315. It became apparent that inefficient pumping, one cause of waste, was in some measure attributable to lack of accurate knowledge of distance from well top to fluid surface. Ability to measure this distance in each separate non-gusher oil well became an obvious next step in the solution of this minor aspect of the problem of waste. The surface and internal machinery and the corkscrew conformation of some oil wells make it impractical to measure depth by the familiar method of lowering a rope or cable. In casting about for an alternative method it was quite natural to hit upon the possibility of utilizing a sound-echo-time method. Unknown distances had frequently been ascertained by this method. Given the time elapsing between the injection of a sound into an oil well and the return of its echo from the fluid surface, and assuming the velocity of the sound to be about 1100 feet per second, as it is in the open air, it would be easy to find the distance. Not only had this sound-echo-time method been long known and generally used to find unknown distances, but in 1898 Batcheller, in Patent No. 602,422, had described an apparatus to find a distance in a tubular space. Obviously an oil well is such a space. He described a device whereby the noise from a gun might be injected into a tube; the returning echoes from obstructions agitated a diaphragm, which in turn moved a stylus. The stylus recorded on a piece of paper a graph or diagram showing the variant movements of the diaphragm caused by its response to all the different echo waves. In the late 1920’s the oil industry began to experiment in the use of this same sound-eeho-time method for measuring the distance to the fluid surface in deep oil wells. A product of this experimentation was the Lehr and Wyatt patent, upon which the present patent claims to be an improvement. It proposed to measure the distance by measuring the time of travel of the echo of an “impulse wave” generated by a “sudden change in pressure.” The apparatus described included a gas cylinder with a quick operating valve by means of which a short blast of gas could be injected into a well. It was stated in the patent that the time elapsing between the release of the gas and the return of the echo of the waves produced by it could be observed in any desired manner. But the patentee’s application and drawings noted that the wave impulses could be recorded by use of a microphone which might include an amplifier and an appropriate device to record a picture of the wave impulses. This Lehr and Wyatt patent, it is therefore apparent, simply provided an apparatus composed of old and well-known devices to measure the time required for pressure waves to move to and back from the fluid surface of an oil well. But the assumption that sound and pressure waves would travel in oil wells at open-air velocity of 1100 feet per second proved to be erroneous. For this reason the time-velocity computation of Lehr and Wyatt for measuring the distance to the fluid surface produced inaccurate results. After conferences with Lehr, Walker undertook to search for a method which would more accurately indicate the sound and pressure wave velocity in each well. Walker was familiar with the structure of oil wells. The oil flow pipe in a well, known as a tubing string, is jointed and where these joints occur there are collars or shoulders. There are also one or more relatively prominent projections on the oil flow pipe known as tubing catchers. In wells where the distance to the tubing catcher is known, Walker observed that the distance to the fluid surface could be measured by a simple time-distance proportion formula. For those wells in which the distance to the tubing catcher was unknown, Walker also suggested another idea. The sections of tubing pipe used in a given oil well are generally of equal length. Therefore the shoulders in a given well ordinarily are at equal intervals from each other. But the section length and therefore the interval may vary from well to well. Walker concluded that he could measure the unknown distance to the tubing catcher if he could observe and record the shoulder echo waves. Thus multiplication of the number of shoulders observed by the known length of a pipe section would produce the distance to the tubing catcher. With this distance, he could solve the distance to the fluid surface by the same proportion formula used when the distance to the tubing catcher was a matter of record. The Lehr and Wyatt instrument could record all these echo waves. But the potential usefulness of the echoes from the shoulders and the tubing catcher which their machine recorded had not occurred to Lehr and Wyatt and consequently they had made no effort better to observe and record them. Walker’s contribution which he claims-to be invention was in effect to add to Lehr and Wyatt’s apparatus a well-known device which would make the regularly appearing shoulder echo waves more prominent on the graph and easier to count. The device added was a mechanical acoustical resonator. This was a short pipe which would receive wave impulses at the mouth of the well. Walker’s testimony was, and his specifications state, that by making the length of this tubal resonator one-third the length of the tubing joints, the resonator would serve as a tuner, adjusted to the frequency of the shoulder echo waves. It would simultaneously amplify these echo waves and eliminate unwanted echoes from other obstructions thus producing a clearer picture of the shoulder echo waves. His specifications show, attached to the tubal resonator, a coupler, the manipulation of which would adjust the length of the tube to one-third of the interval between shoulders in a particular well. His specifications and drawings also show the physical structure of a complete apparatus, designed to inject pressure impulses into a well, and to receive, note, record and time the impulse waves. The District Court held the claims here in suit valid upon its finding that Walker’s “apparatus differs from and is an improvement over the prior art in the incorporation in such apparatus of a tuned acoustical means which performs the function of a sound filter . . .” The Circuit Court of Appeals affirmed this holding, stating that the trial court had found “that the only part of this patent constituting invention over the prior art is the ‘tuned acoustical means which performs the functions of a sound filter.’ ” For our purpose in passing upon the sufficiency of the claims against prohibited indefiniteness we can accept without ratifying the findings of the lower court that the addition of “a tuned acoustical means” performing the “function of a sound filter” brought about a new patentable combination, even though it advanced only a narrow step beyond Lehr and Wyatt’s old combination. We must, however, determine whether, as petitioner charges, the claims here held valid run afoul of Rev. Stat. 4888 because they do not describe the invention but use “conveniently functional language at the exact point of novelty.” General Electric Co. v. Wabash Appliance Corp., supra, at 371. Walker, in some of his claims, e. g., claims 2 and 3, does describe the tuned acoustical pipe as an integral part of his invention, showing its structure, its working arrangement in the alleged new combination, and the manner of its connection with the other parts. But no one of the claims on which this judgment rests has even suggested the physical structure of the acoustical resonator. No one of these claims describes the physical relation of the Walker addition to the old Lehr and Wyatt machine. No one of these claims describes the manner in which the Walker addition will operate together with the old Lehr and Wyatt machine so as to make the “new” unitary apparatus perform its designed function. Thus the claims failed adequately to depict the structure, mode, and operation of the parts in combination. A claim typical of all of those held valid only describes the resonator and its relation with the rest of the apparatus as “means associated with said pressure responsive device for tuning said receiving means to the frequency of echoes from the tubing collars of said tubing sections to clearly distinguish the echoes from said couplings from each other.” The language of the claim thus describes this most crucial element in the “new” combination in terms of what it will do rather than in terms of its own physical characteristics or its arrangement in the new combination apparatus. We have held that a claim with such a description of a product is invalid as a violation of Rev. Stat. 4888. Holland Furniture Co. v. Perkins Glue Co., 277 U. S. 245, 256-57; General Electric Co. v. Wabash Appliance Corp., supra. We understand that the Circuit Court of Appeals held that the same rigid standards of description required for product claims is not required for a combination patent embodying old elements only. We have a different view. Rev. Stat. 4888 pointedly provides that “in case of a machine, he [the patentee] shall explain the principle thereof, and the best mode in which he has contemplated applying that principle, so as to distinguish it from other inventions; and he shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery.” It has long been held that the word “machine” includes a combination. Corning v. Burden, 15 How. 252, 267. We are not persuaded that the public and those affected by patents should lose the protection of this statute merely because the patented device is a combination of old elements. Patents on machines which join old and well-known devices with the declared object of achieving new results, or patents which add an old element to improve a preexisting combination, easily lend themselves to abuse. And to prevent extension of a patent’s scope beyond what was actually invented, courts have viewed claims to combinations and improvements or additions to them with very close scrutiny. Cf. Lincoln Engineering Co. v. Stewart-Warner Corp., 303 U. S. 545, 549-51. For the same reason, courts have qualified the scope of what is meant by the equivalent of an ingredient of a combination of old elements. Gill v. Wells, 22 Wall. 1, 28, 29; Fuller v. Yentzer, 94 U. S. 288, 297, 298. It is quite consistent with this strict interpretation of patents for machines which combine old elements to require clear description in combination claims. This view, clearly expressed in Gill v. Wells, supra, is that “Where the ingredients are all old the invention . . . consists entirely in the combination, and the requirement of the Patent Act that the invention shall be fully and exactly described applies with as much force to such an invention as to any other class, because if not fulfilled all three of the great ends intended to be accomplished by that requirement would be defeated. ... (1.) That the government may know what they have granted and what will become public property when the term of the monopoly expires. (2.) That licensed persons desiring to practice the invention may know, during the term, how to make, construct, and use the invention. (3.) That other inventors may know what part of the field of invention is unoccupied. “Purposes such as these are of great importance in every case, but the fulfilment of them is never more necessary than when such inquiries arise in respect to a patent for a machine which consists of a combination of old ingredients. Patents of that kind are much more numerous than any other, and consequently it is of the greatest importance that the description of the combination, which is the invention, should be full, clear, concise, and exact.” Gill v. Wells, supra, at 25-26. These principles were again emphasized in Merrill v. Yeomans, 94 U. S. 568, 570, where it was said that “. . . in cases where the invention is a new combination of old devices, he [the patentee] is bound to describe with particularity all these old devices, and then the new mode of combining them, for which he desires a patent.” This view has most recently been reiterated in General Electric Co. v. Wabash Appliance Corp., supra, at 368, 369. Cogent reasons would have to be presented to persuade us to depart from this established doctrine. The facts of the case before us, far from undermining our confidence in these earlier pronouncements, reinforce the conclusion that the statutory requirement for a clear description of claims applies to a combination of old devices. This patent and the infringement proceedings brought under it illustrate the hazards of carving out an exception to the sweeping demand Congress made in Rev. Stat. 4888. Neither in the specification, the drawing, nor in the claims here under consideration, was there any indication that the patentee contemplated any specific structural alternative for the acoustical resonator or for the resonator’s relationship to the other parts of the machine. Petitioner was working in a field crowded almost, if not completely, to the point of exhaustion. In 1920, Tucker, in Patent No. 1,351,356, had shown a tuned acoustical resonator in a sound detecting device which measured distances. Lehr and Wyatt had provided for amplification of their waves. Sufficient amplification and exaggeration of all the different waves which Lehr and Wyatt recorded on their machine would have made it easy to distinguish the tubing catcher and regular shoulder waves from all others. For, even without this amplification, the echo waves from tubing collars could by proper magnification have been recorded and accurately counted, had Lehr and Wyatt recognized their importance in computing the velocity. Cf. General Electric Co. v. Jewel Incandescent Lamp Co., 326 U.S. 242. Under these circumstances the broadness, ambiguity, and overhanging threat of the functional claim of Walker become apparent. What he claimed in the court below and what he claims here is that his patent bars anyone from using in an oil well any device heretofore or hereafter invented which combined with the Lehr and Wyatt machine performs the function of clearly and distinctly catching and recording echoes from tubing joints with regularity. Just how many different devices there are of various kinds and characters which would serve to emphasize these echoes, we do not know. The Halliburton device, alleged to infringe, employs an electric filter for this purpose. In this age of technological development there may be many other devices beyond our present information or indeed our imagination which will perform that function and yet fit these claims. And unless frightened from the course of experimentation by broad functional claims like these, inventive genius may evolve many more devices to accomplish the same purpose. See United Carbon Co. v. Binney & Smith Co., 317 U. S. 228, 236; Burr v. Duryee, 1 Wall. 531, 568; O’Reilly v. Morse, 15 How. 62, 112-13. Yet if Walker’s blanket claims be valid, no device to clarify echo waves, now known or hereafter invented, whether the device be an actual equivalent of Walker’s ingredient or not, could be used in a combination such as this, during the life of Walker’s patent. Had Walker accurately described the machine he claims to have invented, he would have had no such broad rights to bar the use of all devices now or hereafter known which could accent waves. For had he accurately described the resonator together with the Lehr and Wyatt apparatus, and sued for infringement, charging the use of something else used in combination to accent the waves, the alleged infringer could have prevailed if the substituted device (1) performed a substantially different function; (2) was not known at the date of Walker’s patent as a proper substitute for the resonator; or (3) had been actually invented after the date of the patent. Fuller v. Yentzer, supra, at 296-97; Gill v. Wells, supra, at 29. Certainly, if we are to be consistent with Rev. Stat. 4888, a patentee cannot obtain greater coverage by failing to describe his invention than by describing it as the statute commands. It is urged that our conclusion is in conflict with the decision of Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405. In that case, however, the claims structurally described the physical and operating relationship of all the crucial parts of the novel combination. The Court there decided only that there had been an infringement of this adequately described invention. That case is not authority for sustaining the claims before us which fail adequately to describe the alleged invention. Reversed. “33. Application for Patent; Description; Specification and Claim. — Before any inventor or discoverer shall receive a patent for his invention or discovery he shall make application therefor, in writing, to the Commissioner of Patents, and shall file in the Patent Office a written description of the same, and of the manner and process of making, constructing, compounding, and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same; and in case of a machine, he shall explain the principle thereof, and the best mode in which he has contemplated applying that principle, so as to distinguish it from other inventions; and he shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery. . . Other alleged errors were urged in the application for certiorari and have been argued here, but since we find the question of definiteness of the claim decisive of the controversy, we shall not further advert to the other contentions. This case was previously affirmed by a divided court, 326 U. S. 696, and upon petition for rehearing was restored to the docket for reargument. 327 U. S. 812. The known distance from well top to the tubing catcher is to the unknown distance from well top to the fluid surface as the time an echo requires to travel from the tubing catcher is to the time required for an echo to travel from the fluid surface. Walker’s patent emphasizes that his invention solves the velocity of sound waves in wells of various pressures in which sound did not travel at open-air or a uniform speed. Mathematically, of course, his determination of the distance by proportions determines the distance to the fluid surface directly without necessarily considering velocity in feet per second as a factor. See Hailes v. Van Wormer, 20 Wall. 353; Knapp v. Morss, 150 U. S. 221, 227-28; Textile Machine Works v. Louis Hirsch Textile Machines, Inc., 302 U. S. 490; Lincoln Engineering Co. v. Stewart-Warner Corp., 303 U. S. 545, 549-50. Halliburton, does not challenge the adequacy of the description of any other features of the “new combination.” The elements of Walker’s apparatus other than the filter are so nearly identical to what Lehr and Wyatt patented that we can speak of these other elements as the “Lehr and Wyatt machine.” Both parties have used Claim 1 as a typical example for purposes of argument throughout the litigation. Other claims need not be set out. Claim 1 is as follows: “In an apparatus for determining the location of an obstruction in a well having therein a string of assembled tubing sections interconnected with each other by coupling collars, means communicating with said well for creating a pressure impulse in said well, echo receiving means including a pressure responsive device exposed to said well for receiving pressure impulses from the well and for measuring the lapse of time between the creation of the impulse and the arrival at said receiving means of the echo from said obstruction, and means associated with said pressure responsive device for tuning said receiving means to the frequency of echoes from the tubing collars of said tubing sections to clearly distinguish the echoes from said couplings from each other.” The typical claim there in suit was as follows: “2. In a paper bag machine, the combination of the rotating cylinder provided with one or more pairs of side folding fingers adapted to be moved toward or from each other, a forming plate also provided with side forming fingers adapted to be moved toward or from each other, means for operating said fingers at definite times during the formative action upon the bag tube, operating means for the forming plate adapted to cause the said plate to oscillate about its rear edge upon the surface of the cylinder during the rotary movement of said cylinder for the purpose of opening and forming the bottom of the bag tube, a finger moving with the forming plate for receiving the upper sheet of the tube and lifting it during the formative action, power devices for returning the forming plate to its original position to receive a new bag tube, and means to move the bag tube with the cylinder.” Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, 417, n. 1. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice THOMASdelivered the opinion of the Court. The town of Gilbert, Arizona (or Town), has adopted a comprehensive code governing the manner in which people may display outdoor signs. Gilbert, Ariz., Land Development Code (Sign Code or Code), ch. 1, § 4.402 (2005).The Sign Code identifies various categories of signs based on the type of information they convey, then subjects each category to different restrictions. One of the categories is "Temporary Directional Signs Relating to a Qualifying Event," loosely defined as signs directing the public to a meeting of a nonprofit group. § 4.402(P). The Code imposes more stringent restrictions on these signs than it does on signs conveying other messages. We hold that these provisions are content-based regulations of speech that cannot survive strict scrutiny. I A The Sign Code prohibits the display of outdoor signs anywhere within the Town without a permit, but it then exempts 23 categories of signs from that requirement. These exemptions include everything from bazaar signs to flying banners. Three categories of exempt signs are particularly relevant here. The first is "Ideological Sign[s]." This category includes any "sign communicating a message or ideas for noncommercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency." Sign Code, Glossary of General Terms (Glossary), p. 23 (emphasis deleted). Of the three categories discussed here, the Code treats ideological signs most favorably, allowing them to be up to 20 square feet in area and to be placed in all "zoning districts" without time limits. § 4.402(J). The second category is "Political Sign[s]." This includes any "temporary sign designed to influence the outcome of an election called by a public body." Glossary 23.The Code treats these signs less favorably than ideological signs. The Code allows the placement of political signs up to 16 square feet on residential property and up to 32 square feet on nonresidential property, undeveloped municipal property, and "rights-of-way." § 4.402(I).These signs may be displayed up to 60 days before a primary election and up to 15 days following a general election. Ibid. The third category is "Temporary Directional Signs Relating to a Qualifying Event." This includes any "Temporary Sign intended to direct pedestrians, motorists, and other passersby to a 'qualifying event.' " Glossary 25 (emphasis deleted). A "qualifying event" is defined as any "assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization." Ibid.The Code treats temporary directional signs even less favorably than political signs.Temporary directional signs may be no larger than six square feet. § 4.402(P). They may be placed on private property or on a public right-of-way, but no more than four signs may be placed on a single property at any time. Ibid. And, they may be displayed no more than 12 hours before the "qualifying event" and no more than 1 hour afterward. Ibid. B Petitioners Good News Community Church (Church) and its pastor, Clyde Reed, wish to advertise the time and location of their Sunday church services. The Church is a small, cash-strapped entity that owns no building, so it holds its services at elementary schools or other locations in or near the Town. In order to inform the public about its services, which are held in a variety of different locations, the Church began placing 15 to 20 temporary signs around the Town, frequently in the public right-of-way abutting the street. The signs typically displayed the Church's name, along with the time and location of the upcoming service. Church members would post the signs early in the day on Saturday and then remove them around midday on Sunday. The display of these signs requires little money and manpower, and thus has proved to be an economical and effective way for the Church to let the community know where its services are being held each week. This practice caught the attention of the Town's Sign Code compliance manager, who twice cited the Church for violating the Code. The first citation noted that the Church exceeded the time limits for displaying its temporary directional signs. The second citation referred to the same problem, along with the Church's failure to include the date of the event on the signs. Town officials even confiscated one of the Church's signs, which Reed had to retrieve from the municipal offices. Reed contacted the Sign Code Compliance Department in an attempt to reach an accommodation. His efforts proved unsuccessful. The Town's Code compliance manager informed the Church that there would be "no leniency under the Code" and promised to punish any future violations. Shortly thereafter, petitioners filed a complaint in the United States District Court for the District of Arizona, arguing that the Sign Code abridged their freedom of speech in violation of the First and Fourteenth Amendments. The District Court denied the petitioners' motion for a preliminary injunction. The Court of Appeals for the Ninth Circuit affirmed, holding that the Sign Code's provision regulating temporary directional signs did not regulate speech on the basis of content. 587 F.3d 966, 979 (2009). It reasoned that, even though an enforcement officer would have to read the sign to determine what provisions of the Sign Code applied to it, the " 'kind of cursory examination' " that would be necessary for an officer to classify it as a temporary directional sign was "not akin to an officer synthesizing the expressive content of the sign." Id.,at 978. It then remanded for the District Court to determine in the first instance whether the Sign Code's distinctions among temporary directional signs, political signs, and ideological signs nevertheless constituted a content-based regulation of speech. On remand, the District Court granted summary judgment in favor of the Town. The Court of Appeals again affirmed, holding that the Code's sign categories were content neutral. The court concluded that "the distinctions between Temporary Directional Signs, Ideological Signs, and Political Signs... are based on objective factors relevant to Gilbert's creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign." 707 F.3d 1057, 1069 (C.A.9 2013). Relying on this Court's decision in Hill v. Colorado,530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), the Court of Appeals concluded that the Sign Code is content neutral. 707 F.3d, at 1071-1072. As the court explained, "Gilbert did not adopt its regulation of speech because it disagreed with the message conveyed" and its "interests in regulat[ing] temporary signs are unrelated to the content of the sign." Ibid.Accordingly, the court believed that the Code was "content-neutral as that term [has been] defined by the Supreme Court." Id.,at 1071. In light of that determination, it applied a lower level of scrutiny to the Sign Code and concluded that the law did not violate the First Amendment. Id.,at 1073-1076. We granted certiorari, 573 U.S. ----, 134 S.Ct. 2900, 189 L.Ed.2d 854 (2014), and now reverse. II A The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws "abridging the freedom of speech." U.S. Const., Amdt. 1. Under that Clause, a government, including a municipal government vested with state authority, "has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dept. of Chicago v. Mosley,408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Content-based laws-those that target speech based on its communicative content-are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. R.A.V. v. St. Paul,505 U.S. 377, 395, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992);Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd.,502 U.S. 105, 115, 118, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991). Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. E.g., Sorrell v. IMS Health, Inc.,564 U.S. ----, ---- - ----, 131 S.Ct. 2653, 2663-2664, 180 L.Ed.2d 544 (2011); Carey v. Brown,447 U.S. 455, 462, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980); Mosley, supra,at 95, 92 S.Ct. 2286. This commonsense meaning of the phrase "content based" requires a court to consider whether a regulation of speech "on its face" draws distinctions based on the message a speaker conveys. Sorrell, supra,at ----, 131 S.Ct., at 2664. Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny. Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech: laws that cannot be " 'justified without reference to the content of the regulated speech,' " or that were adopted by the government "because of disagreement with the message [the speech] conveys," Ward v. Rock Against Racism,491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).Those laws, like those that are content based on their face, must also satisfy strict scrutiny. B The Town's Sign Code is content based on its face. It defines "Temporary Directional Signs" on the basis of whether a sign conveys the message of directing the public to church or some other "qualifying event." Glossary 25. It defines "Political Signs" on the basis of whether a sign's message is "designed to influence the outcome of an election." Id.,at 24. And it defines "Ideological Signs" on the basis of whether a sign "communicat [es] a message or ideas" that do not fit within the Code's other categories. Id.,at 23. It then subjects each of these categories to different restrictions. The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. If a sign informs its reader of the time and place a book club will discuss John Locke's Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke's followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke's theory of government. More to the point, the Church's signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government's justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny. C In reaching the contrary conclusion, the Court of Appeals offered several theories to explain why the Town's Sign Code should be deemed content neutral. None is persuasive. 1 The Court of Appeals first determined that the Sign Code was content neutral because the Town "did not adopt its regulation of speech [based on] disagree [ment] with the message conveyed," and its justifications for regulating temporary directional signs were "unrelated to the content of the sign." 707 F.3d, at 1071-1072. In its brief to this Court, the United States similarly contends that a sign regulation is content neutral-even if it expressly draws distinctions based on the sign's communicative content-if those distinctions can be " 'justified without reference to the content of the regulated speech.' " Brief for United States as Amicus Curiae20, 24 (quoting Ward, supra,at 791, 109 S.Ct. 2746; emphasis deleted). But this analysis skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of "animus toward the ideas contained" in the regulated speech. Cincinnati v. Discovery Network, Inc.,507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). We have thus made clear that " '[i]llicit legislative intent is not the sine qua nonof a violation of the First Amendment,' " and a party opposing the government "need adduce 'no evidence of an improper censorial motive.' " Simon & Schuster, supra,at 117, 112 S.Ct. 501. Although "a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary." Turner Broadcasting System, Inc. v. FCC,512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral. That is why we have repeatedly considered whether a law is content neutral on its face beforeturning to the law's justification or purpose. See, e.g.,Sorrell, supra,at ---- - ----, 131 S.Ct., at 2663-2664(statute was content based "on its face," and there was also evidence of an impermissible legislative motive); United States v. Eichman,496 U.S. 310, 315, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990)("Although the [statute] contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is related to the suppression of free expression" (internal quotation marks omitted)); Members of City Council of Los Angeles v. Taxpayers for Vincent,466 U.S. 789, 804, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)("The text of the ordinance is neutral," and "there is not even a hint of bias or censorship in the City's enactment or enforcement of this ordinance"); Clark v. Community for Creative Non-Violence,468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)(requiring that a facially content-neutral ban on camping must be "justified without reference to the content of the regulated speech"); United States v. O'Brien,391 U.S. 367, 375, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)(noting that the statute "on its face deals with conduct having no connection with speech," but examining whether the "the governmental interest is unrelated to the suppression of free expression"). Because strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based, a court must evaluate each question before it concludes that the law is content neutral and thus subject to a lower level of scrutiny. The Court of Appeals and the United States misunderstand our decision in Wardas suggesting that a government's purpose is relevant even when a law is content based on its face. That is incorrect. Wardhad nothing to say about facially content-based restrictions because it involved a facially content-neutralban on the use, in a city-owned music venue, of sound amplification systems not provided by the city. 491 U.S., at 787, and n. 2, 109 S.Ct. 2746. In that context, we looked to governmental motive, including whether the government had regulated speech "because of disagreement" with its message, and whether the regulation was " 'justified without reference to the content of the speech.' " Id.,at 791, 109 S.Ct. 2746. But Ward's framework "applies only if a statute is content neutral." Hill,530 U.S., at 766, 120 S.Ct. 2480(KENNEDY, J., dissenting). Its rules thus operate "to protect speech," not "to restrict it." Id.,at 765, 120 S.Ct. 2480. The First Amendment requires no less. Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws-i.e., the "abridg[ement] of speech"-rather than merely the motives of those who enacted them. U.S. Const., Amdt. 1. " 'The vice of content-based legislation... is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.' " Hill, supra,at 743, 120 S.Ct. 2480(SCALIA, J., dissenting). For instance, in NAACP v. Button,371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), the Court encountered a State's attempt to use a statute prohibiting " 'improper solicitation' " by attorneys to outlaw litigation-related speech of the National Association for the Advancement of Colored People. Id.,at 438, 83 S.Ct. 328. Although Buttonpredated our more recent formulations of strict scrutiny, the Court rightly rejected the State's claim that its interest in the "regulation of professional conduct" rendered the statute consistent with the First Amendment, observing that "it is no answer... to say... that the purpose of these regulations was merely to insure high professional standards and not to curtail free expression." Id.,at 438-439, 83 S.Ct. 328. Likewise, one could easily imagine a Sign Code compliance manager who disliked the Church's substantive teachings deploying the Sign Code to make it more difficult for the Church to inform the public of the location of its services. Accordingly, we have repeatedly "rejected the argument that 'discriminatory... treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas.' " Discovery Network, 507 U.S., at 429, 113 S.Ct. 1505. We do so again today. 2 The Court of Appeals next reasoned that the Sign Code was content neutral because it "does not mention any idea or viewpoint, let alone single one out for differential treatment." 587 F.3d, at 977. It reasoned that, for the purpose of the Code provisions, "[i]t makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted." 707 F.3d, at 1069. The Town seizes on this reasoning, insisting that "content based" is a term of art that "should be applied flexibly" with the goal of protecting "viewpoints and ideas from government censorship or favoritism." Brief for Respondents 22. In the Town's view, a sign regulation that "does not censor or favor particular viewpoints or ideas" cannot be content based. Ibid. The Sign Code allegedly passes this test because its treatment of temporary directional signs does not raise any concerns that the government is "endorsing or suppressing 'ideas or viewpoints,' " id.,at 27, and the provisions for political signs and ideological signs "are neutral as to particular ideas or viewpoints" within those categories. Id.,at 37. This analysis conflates two distinct but related limitations that the First Amendment places on government regulation of speech. Government discrimination among viewpoints-or the regulation of speech based on "the specific motivating ideology or the opinion or perspective of the speaker"-is a "more blatant" and "egregious form of content discrimination." Rosenberger v. Rector and Visitors of Univ. of Va.,515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). But it is well established that "[t]he First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic." Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N. Y.,447 U.S. 530, 537, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980). Thus, a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter. Ibid.For example, a law banning the use of sound trucks for political speech-and only political speech-would be a content-based regulation, even if it imposed no limits on the political viewpoints that could be expressed. See Discovery Network, supra,at 428, 113 S.Ct. 1505. The Town's Sign Code likewise singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter. Ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given more favorable treatment than messages announcing an assembly of like-minded individuals. That is a paradigmatic example of content-based discrimination. 3 Finally, the Court of Appeals characterized the Sign Code's distinctions as turning on " 'the content-neutral elements of who is speaking through the sign and whether and when an event is occurring.' " 707 F.3d, at 1069. That analysis is mistaken on both factual and legal grounds. To start, the Sign Code's distinctions are not speaker based. The restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. If a local business, for example, sought to put up signs advertising the Church's meetings, those signs would be subject to the same limitations as such signs placed by the Church. And if Reed had decided to display signs in support of a particular candidate, he could have made those signs far larger-and kept them up for far longer-than signs inviting people to attend his church services. If the Code's distinctions were truly speaker based, both types of signs would receive the same treatment. In any case, the fact that a distinction is speaker based does not, as the Court of Appeals seemed to believe, automatically render the distinction content neutral. Because "[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content," Citizens United v. Federal Election Comm'n,558 U.S. 310, 340, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), we have insisted that "laws favoring some speakers over others demand strict scrutiny when the legislature's speaker preference reflects a content preference," Turner, 512 U.S., at 658, 114 S.Ct. 2445. Thus, a law limiting the content of newspapers, but only newspapers, could not evade strict scrutiny simply because it could be characterized as speaker based. Likewise, a content-based law that restricted the political speech of all corporations would not become content neutral just because it singled out corporations as a class of speakers. See Citizens United, supra,at 340-341, 130 S.Ct. 876. Characterizing a distinction as speaker based is only the beginning-not the end-of the inquiry. Nor do the Sign Code's distinctions hinge on "whether and when an event is occurring." The Code does not permit citizens to post signs on any topic whatsoever within a set period leading up to an election, for example. Instead, come election time, it requires Town officials to determine whether a sign is "designed to influence the outcome of an election" (and thus "political") or merely "communicating a message or ideas for noncommercial purposes" (and thus "ideological"). Glossary 24. That obvious content-based inquiry does not evade strict scrutiny review simply because an event (i.e., an election) is involved. And, just as with speaker-based laws, the fact that a distinction is event based does not render it content neutral. The Court of Appeals cited no precedent from this Court supporting its novel theory of an exception from the content-neutrality requirement for event-based laws. As we have explained, a speech regulation is content based if the law applies to particular speech because of the topic discussed or the idea or message expressed. Supra,at 2226 - 2227. A regulation that targets a sign because it conveys an idea about a specific event is no less content based than a regulation that targets a sign because it conveys some other idea. Here, the Code singles out signs bearing a particular message: the time and location of a specific event. This type of ordinance may seem like a perfectly rational way to regulate signs, but a clear and firm rule governing content neutrality is an essential means of protecting the freedom of speech, even if laws that might seem "entirely reasonable" will sometimes be "struck down because of their content-based nature." City of Ladue v. Gilleo,512 U.S. 43, 60, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994)(O'Connor, J., concurring). III Because the Town's Sign Code imposes content-based restrictions on speech, those provisions can stand only if they survive strict scrutiny, " 'which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest,' " Arizona Free Enterprise Club's Freedom Club PAC v. Bennett,564 U.S. ----, ----, 131 S.Ct. 2806, 2817, 180 L.Ed.2d 664 (2011)(quoting Citizens United,558 U.S., at 340, 130 S.Ct. 876). Thus, it is the Town's burden to demonstrate that the Code's differentiation between temporary directional signs and other types of signs, such as political signs and ideological signs, furthers a compelling governmental interest and is narrowly tailored to that end. See ibid. The Town cannot do so. It has offered only two governmental interests in support of the distinctions the Sign Code draws: preserving the Town's aesthetic appeal and traffic safety. Assuming for the sake of argument that those are compelling governmental interests, the Code's distinctions fail as hopelessly underinclusive. Starting with the preservation of aesthetics, temporary directional signs are "no greater an eyesore," Discovery Network,507 U.S., at 425, 113 S.Ct. 1505, than ideological or political ones. Yet the Code allows unlimited proliferation of larger ideological signs while strictly limiting the number, size, and duration of smaller directional ones. The Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem. The Town similarly has not shown that limiting temporary directional signs is necessary to eliminate threats to traffic safety, but that limiting other types of signs is not. The Town has offered no reason to believe that directional signs pose a greater threat to safety than do ideological or political signs. If anything, a sharply worded ideological sign seems more likely to distract a driver than a sign directing the public to a nearby church meeting. In light of this underinclusiveness, the Town has not met its burden to prove that its Sign Code is narrowly tailored to further a compelling government interest. Because a " 'law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction on truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited,' " Republican Party of Minn. v. White,536 U.S. 765, 780, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), the Sign Code fails strict scrutiny. IV Our decision today will not prevent governments from enacting effective sign laws. The Town asserts that an " 'absolutist' " content-neutrality rule would render "virtually all distinctions in sign laws... subject to strict scrutiny," Brief for Respondents 34-35, but that is not the case. Not "all distinctions" are subject to strict scrutiny, only content-basedones are. Laws that are content neutralare instead subject to lesser scrutiny. See Clark,468 U.S., at 295, 104 S.Ct. 3065. The Town has ample content-neutral options available to resolve problems with safety and aesthetics. For example, its current Code regulates many aspects of signs that have nothing to do with a sign's message: size, building materials, lighting, moving parts, and portability. See, e.g.,§ 4.402(R). And on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner. See Taxpayers for Vincent,466 U.S., at 817, 104 S.Ct. 2118(upholding content-neutral ban against posting signs on public property). Indeed, some lower courts have long held that similar content-based sign laws receive strict scrutiny, but there is no evidence that towns in those jurisdictions have suffered catastrophic effects. See, e.g.,Solantic, LLC v. Neptune Beach,410 F.3d 1250, 1264-1269 (C.A.11 2005)(sign categories similar to the town of Gilbert's were content based and subject to strict scrutiny); Matthews v. Needham,764 F.2d 58, 59-60 (C.A.1 1985)(law banning political signs but not commercial signs was content based and subject to strict scrutiny). We acknowledge that a city might reasonably view the general regulation of signs as necessary because signs "take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation." City of Ladue, 512 U.S., at 48, 114 S.Ct. 2038. At the same time, the presence of certain signs may be essential, both for vehicles and pedestrians, to guide traffic or to identify hazards and ensure safety. A sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers-such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses-well might survive strict scrutiny. The signs at issue in this case, including political and ideological signs and signs for events, are far removed from those purposes. As discussed above, they are facially content based and are neither justified by traditional safety concerns nor narrowly tailored. * * * We reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion. It is so ordered. Justice ALITO, with whom Justice KENNEDYand Justice SOTOMAYORjoin, concurring. I join the opinion of the Court but add a few words of further explanation. As the Court holds, what we have termed "content-based" laws must satisfy strict scrutiny. Content-based laws merit this protection because they present, albeit sometimes in a subtler form, the same dangers as laws that regulate speech based on viewpoint. Limiting speech based on its "topic" or "subject" favors those who do not want to disturb the status quo. Such regulations may interfere with democratic self-government and the search for truth. See Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N. Y.,447 U.S. 530, 537, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980). As the Court shows, the regulations at issue in this case are replete with content-based distinctions, and as a result they must satisfy strict scrutiny. This does not mean, however, that municipalities are powerless to enact and enforce reasonable sign regulations. I will not attempt to provide anything like a comprehensive list, but here are some rules that would not be content based: Rules regulating the size of signs. These rules may distinguish among signs based on any content-neutral criteria, including any relevant criteria listed below. Rules regulating the locations in which signs may be placed. These rules may distinguish between free-standing signs and those attached to buildings. Rules distinguishing between lighted and unlighted signs. Rules distinguishing between signs with fixed messages and electronic signs with messages that change. Rules that distinguish between the placement of signs on private and public property. Rules distinguishing between the placement of signs on commercial and residential property. Rules distinguishing between on-premises and off-premises signs. Rules restricting the total number of signs allowed per mile of roadway. Rules imposing time restrictions on signs advertising a one-time event. Rules of this nature do not discriminate based on topic or subject and are akin to rules restricting the times within which oral speech or music is allowed. In addition to regulating signs put up by private actors, government entities may also erect their own signs consistent with the principles that allow governmental speech. See Pleasant Grove City v. Summum,555 U.S. 460, 467-469, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). They may put up all manner of signs to promote safety, as well as directional signs and signs pointing out historic sites and scenic spots. Properly understood, today's decision will not prevent cities from regulating signs in a way that fully protects public safety and serves legitimate esthetic objectives. Justice BREYER, concurring in the judgment. I join Justice KAGAN's separate opinion. Like Justice KAGAN I believe that categories alone cannot satisfactorily resolve the legal problem before us. The First Amendment requires greater judicial sensitivity both to the Amendment's expressive objectives and to the public's legitimate need for regulation than a simple recitation of categories, such as "content discrimination" and "strict scrutiny," would permit. In my view, the category "content discrimination" is better considered in many contexts, including here, as a rule of thumb, rather than as an automatic "strict scrutiny" trigger, leading to almost certain legal condemnation. To use content discrimination to trigger strict scrutiny sometimes makes perfect sense. There are cases in which the Court has found content discrimination an unconstitutional method for suppressing a viewpoint. E.g., Rosenberger v. Rector and Visitors of Univ. of Va.,515 U.S. 819, 828-829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); see also Boos v. Barry,485 U.S. 312, 318-319, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988)(plurality opinion) (applying strict scrutiny where the line between subject matter and viewpoint was not obvious). And there are cases where the Court has found content discrimination to reveal that rules governing a traditional public forum are, in fact, not a neutral way of fairly managing the forum in the interest of all speakers. Police Dept. of Chicago v. Mosley,408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)("Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say"). In these types of cases, strict scrutiny is often appropriate, and content discrimination has thus served a useful purpose. But content discrimination, while helping courts to identify unconstitutional suppression of Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

C

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Marshall delivered the opinion of the Court. This case requires us to determine whether two types of orders by a district court are immediately appealable under 28 U. S. C. § 1291: first, an order denying a motion to dismiss based on an extradited person’s claim that he is immune from civil service of process; and second, an order denying a motion to dismiss on the ground of forum non conveniens. W This case arises from a dispute over a loan. Petitioner, a real estate broker in Brussels, encouraged respondent, also a Brussels resident, to meet with one Alan Blair in the United States to discuss a real estate investment. Blair is a resident of Los Angeles. Following a business trip to Atlanta, respondent traveled to Los Angeles where he met petitioner, Blair, and others, to talk about the investment. Blair described a real estate partnership called Three B Investment Associates, which was renovating a townhouse complex outside Kansas City known as Concorde Bridge Townhouses. At petitioner’s urging, respondent agreed to lend the partnership $1 million for three years at 20% per annum interest, secured by a mortgage on the Concorde Bridge complex. At the time, the partnership did not have title to the Concorde Bridge complex, but it held a contract to purchase the complex and had made a substantial deposit. The partnership, after making some scheduled payments, eventually defaulted on its promissory note to respondent. The mortgage proved worthless because the partnership had not acquired title to the Concorde Bridge complex. Respondent retained American counsel, claiming that he had been misled into believing that the partnership held title to the Concorde Bridge Townhouses at the time of the loan. Soon thereafter, United States prosecutors became involved in the controversy. In October 1984, petitioner, Blair, and another American were indicted in the Central District of California on charges of wire fraud and causing the interstate transportation of a victim of fraud. The indictment charged that the three defendants had fraudulently induced respondent to lend them $1 million by falsely representing that they owned the Concorde Bridge complex through the real estate partnership. While on a trip to Geneva, petitioner was arrested pursuant to a request from the United States Department of Justice under the applicable extradition treaty with Switzerland. See Treaty between the United States and Switzerland for the Extradition of Criminals, May 14, 1900, 31 Stat. 1928, T. S. No. 354 (1900). Petitioner was extradited and delivered to Los Angeles by United States Marshals after legal proceedings in Swiss courts. Following a jury trial, petitioner was found guilty on one count of wire fraud and one count of causing the interstate transportation of a victim of fraud. On January 22, 1986, petitioner was sentenced to a prison term of one year and one day, which was satisfied by the time he already had spent in pretrial confinement. The trial court also ordered petitioner to pay respondent restitution of $34,501.26 and placed him on probation. Petitioner was ordered not to leave the United States until the restitution order was satisfied. The conviction was affirmed by the Court of Appeals. United States v. Van Cauwenberghe, 827 F. 2d 424 (CA9 1987), cert. denied, 484 U. S. 1042 (1988). On November 12, 1985, one week before petitioner’s criminal trial commenced, respondent filed a civil suit against petitioner, Blair, and others in the District Court for the Central District of California. The complaint asserted a civil Racketeer Influenced and Corrupt Organizations (RICO) claim, a common-law claim of fraud, and other pendent state-law claims arising out of the defaulted loan. On February 5, 1986, about two weeks after his sentencing, petitioner was served with the summons and complaint as he was arriving at the office of his probation officer to keep a scheduled appointment. Petitioner moved to dismiss the suit on two separate grounds. First, he argued that because his presence in the United States was a result of extradition, he was immune from civil process. Second, petitioner argued that the complaint should be dismissed on the ground of forum non conveniens. The District Court summarily denied both motions. App. 221, Biard v. Blair, No. CV 85-7378 JSL (Nov. 17, 1986). The Court of Appeals dismissed petitioner’s appeal for lack of jurisdiction in a one-line order, citing this Court’s decisions in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), and Mitchell v. Forsyth, 472 U. S. 511 (1985). App. 234, No. 86-6735 (CA9, July 7, 1987). We granted certiorari, 484 U. S. 942 (1987), and we now affirm. II The courts of appeals have jurisdiction under 28 U. S. C. §1291 of appeals “from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court.” A party generally may not take an appeal under § 1291 until there has been a decision by the district court that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U. S. 229, 233 (1945). In Cohen v. Beneficial Industrial Loan Corp., supra, however, we recognized a “small class” of decisions that are immediately appealable under § 1291 even though the decision has not terminated the proceedings in the district court. 337 U. S., at 546. The Court stated that a decision is final and appealable for purposes of § 1291 if it “finally determined] claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Ibid. The Court refined the “collateral order” doctrine of Cohen in Coopers & Lybrand v. Livesay, 437 U. S. 463 (1978). In Coopers & Lybrand, the Court held that to come within the collateral order doctrine of Cohen, the order must satisfy each of three conditions: it must (1) “conclusively determine the disputed question,” (2) “resolve an important issue completely separate from the merits of the action,” and (3) “be effectively unreviewable on appeal from a final judgment.” 437 U. S., at 468 (footnote omitted). As petitioner acknowledges, the order of the District Court denying petitioner’s motion to dismiss on grounds of immunity from civil process or forum non conveniens did not end the litigation on the merits. Therefore, the order is appeal-able as to either ground only if the three requirements set out in Coopers & Lybrand are met. A In asserting the appealability of his claim of immunity from civil process, petitioner principally relies on this Court’s decision in Mitchell v. Forsyth, supra. The Court held in Mitchell that the denial of a claim of qualified immunity by the Attorney General was immediately appealable under the collateral order doctrine. The crucial issue in Mitchell was whether the order was effectively unreviewable on appeal from final judgment. See id., at 525. In holding that such an order was effectively unreviewable, the Court reasoned that an “essential attribute” of qualified immunity is “an entitlement not to stand trial under certain circumstances,” and thus is “an immunity from suit rather than a mere defense to liability.” Id., at 525, 526. As with absolute immunity, the Court concluded, “[the entitlement] is effectively lost if a case is erroneously permitted to go to trial.” Id., at 526. Petitioner argues that under United States v. Rauscher, 119 U. S. 407 (1886), as well as under federal extradition statutes and the extradition treaty between the United States and Switzerland, he is immune from civil service of process while his presence in the United States is compelled by extradition for criminal charges. Petitioner further contends that his immunity under Rauscher, like the immunity in Mitchell, entails the right not to stand trial, which cannot be effectively vindicated on appeal from final judgment. In Rauscher, the Court stated the general “principle of specialty” in federal extradition law: “[A] person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings.” 119 U. S., at 430. Petitioner argues that the principle of specialty requires not merely that an extradited person be immune from criminal prosecutions other than the offenses for which he was extradited, but that he be generally “free from any judicial interference,” including civil suit. Brief for Petitioner 18. The issue on which we granted certiorari, however, and on which the Court of Appeals based its decision, is not whether petitioner’s underlying claim of immunity is meritorious, but whether the denial of petitioner’s motion to dismiss on grounds of immunity from service of process is immediately appeal-able. For purposes of determining appealability, therefore, we will assume, but do not decide, that petitioner has presented a substantial claim of immunity from civil service of process that warrants appellate consideration. Making this assumption, we conclude that petitioner’s claim of immunity from service is effectively reviewable on appeal from final judgment, and thus is not an immediately appealable collateral order under Cohen and Coopers & Lybrand. The critical question, following Mitchell, is whether “the essence” of the claimed right is a right not to stand trial. Mitchell, 472 U. S., at 525. This question is difficult because in some sense, all litigants who have a meritorious pretrial claim for dismissal can reasonably claim a right not to stand trial. But the final-judgment rule requires that except in certain narrow circumstances in which the right would be “irretrievably lost” absent an immediate appeal, Richardson-Merrell Inc. v. Roller, 472 U. S. 424, 431 (1985), litigants must abide by the district court’s judgments, and suffer the concomitant burden of a trial, until the end of proceedings before gaining appellate review. As the Court stated in United States v. MacDonald, 435 U. S. 850, 860, n. 7 (1978): “Admittedly, there is value — to all but the most unusual litigant — in triumphing before trial, rather than after it, regardless of the substance of the winning claim. But this truism is not to be confused with the quite distinct proposition that certain claims (because of the substance of the rights entailed, rather than the advantage to a litigant in winning his claim sooner) should be resolved before trial.” Because of the important interests furthered by the final-judgment rule, see n. 3, supra, and the ease with which certain pretrial claims for dismissal may be alleged to entail the right not to stand trial, we should examine the nature of the right asserted with special care to determine whether an essential aspect of the claim is the right to be free of the burdens of a trial. We believe that even if the principle of specialty shields petitioner from service of process in a civil suit while he is detained in the United States following his extradition and conviction — an issue on which we express no opinion — the right not to be burdened with a civil trial itself is not an essential aspect of this protection. First, the principle of specialty fundamentally bears on treaty obligations between states; the principle operates to ensure that the receiving state does not abuse the extradition processes of the extraditing state. See Rauscher, supra, at 419-420; 1 M. Bassiouni, International Extradition: United States Law and Practice, ch. 7, § 7, pp. 360-361 (2d ed. 1987). The conduct of a civil trial, prior to any attempt to subject the defendant to a binding judgment of the court, does not significantly implicate the receiving state’s obligation under the doctrine. Unlike a criminal prosecution, in which the coercive power of the state is immediately brought to bear, the state’s involvement in the conduct of a private civil suit is minimal. The state’s role is simply to provide a forum for the resolution of a private dispute. In the absence of an explicit agreement obligating the United States to protect the extradited person from the burdens of a civil suit, we believe that there is little potential that the extraditing state, in this case Switzerland, will view the mere conduct of a private civil trial as a breach of an obligation by the United States not to abuse the extradition process. In addition, to the extent that the principle of specialty protects an extradited person from the exercise of coercive power by the receiving state on matters not anticipated by the extradition, the defense of a civil, suit does not significantly restrict a defendant’s liberty. Service of process merely requires that a defendant appear through an attorney and file an answer to the complaint to avoid default. There is no possibility that the defendant will be subject to pretrial detention or be required to post bail. The defendant is not even compelled to be present at trial. We therefore conclude that a right not to stand trial in a civil suit is not an essential aspect of a claim of immunity under the principle of specialty. Given that the principle of specialty provides no independent support for petitioner’s claim that he has a right not to stand trial, the question becomes whether such a right is entailed in the mere assertion that the district court lacks personal jurisdiction because of immunity from service of process. Cf. Rauscher, 119 U. S., at 433 (“[Court] did not have jurisdiction of the person at that time”). In the context of due process restrictions on the exercise of personal jurisdiction, this Court has recognized that the individual interest protected is in “not being subject to the binding judgments of a forum with which [the defendant] has established no meaningful ‘contacts, ties, or relations.’” Burger King Corp. v. Rudzewicz, 471 U. S. 462, 471-472 (1985), quoting International Shoe Co. v. Washington, 326 U. S. 310, 319 (1945). Similarly, we believe petitioner’s challenge to the District Court’s exercise of personal jurisdiction because he is immune from civil process should be characterized as the right not to be subject to a binding judgment of the court. Because the right not to be subject to a binding judgment may be effectively vindicated following final judgment, we have held that the denial of a claim of lack of jurisdiction is not an immediately appealable collateral order. See Catlin v. United States, 324 U. S., at 236. The Court of Appeals was therefore correct to conclude that the District Court’s denial of petitioner’s motion to dismiss on the ground of immunity from civil process is not immediately appealable. B Petitioner also argues that the District Court’s order denying the motion to dismiss on the ground of forum non con-veniens falls within the collateral order doctrine of Cohen and thus is immediately appealable under § 1291. We conclude, however, as have the majority of the Courts of Appeals that have considered the issue, that the question of the convenience of the forum is not “completely separate from the merits of the action,” Coopers & Lybrand, 437 U. S., at 468, and thus is not immediately appealable as of right. The requirement that the order be completely separate from the merits is “a distillation of the principle that there should not be piecemeal review of ‘steps towards final judgment in which they will merge.’ ” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 12, n. 13 (1983), quoting Cohen, 337 U. S., at 546. Allowing appeals from interlocutory orders that involve considerations enmeshed in the merits of the dispute would waste judicial resources by requiring repetitive appellate review of substantive questions in the case. In Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 508 (1947), the Court described various “[i]m-portant considerations” for district courts to balance in deciding whether a particular forum is so inconvenient for the defendant as to warrant dismissal. We believe these considerations make clear that in assessing a forum non conveniens motion, the district court generally becomes entangled in the merits of the underlying dispute. The Court in Gulf Oil stated that district courts must look into “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling . . . witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Ibid. To examine “the relative ease of access to sources of proof,” and the availability of witnesses, the district court must scrutinize the substance of the dispute between the parties to evaluate what proof is required, and determine whether the pieces of evidence cited by the parties are critical, or even relevant, to the plaintiff’s cause of action and to any potential defenses to the action. Public interest factors relevant to a forum non conveniens determination — such as the “local interest in having localized controversies decided at home” and the interest in having “the trial of a diversity case in a forum that is at home with the state law that must govern the case,” id., at 509 — also thrust the court into the merits of the underlying dispute. To evaluate these factors, the court must consider the locus of the alleged culpable conduct, often a disputed issue, and the connection of that conduct to the plaintiff’s chosen forum. Cf. Piper Aircraft Co. v. Reyno, 454 U. S. 235, 259-260 (1981). This list of considerations to be balanced is by no means exhaustive, and some factors may not be relevant in the context of a particular case. Moreover, the district court’s inquiry-does not necessarily require extensive investigation, and may be resolved on affidavits presented by the parties. See id., at 258-259. As we previously have recognized, the district court is accorded substantial flexibility in evaluating a forum non conveniens motion, id., at 249, and “[e]ach case turns on its facts.” Williams v. Green Bay & Western R. Co., 326 U. S. 549, 557 (1946). It is thus undoubtedly true that in certain cases, the forum non conveniens determination will not require significant inquiry.into the facts and legal issues presented by a case, and an immediate appeal might result in substantial savings of time and expense for both the litigants and the courts. In fashioning a rule of appealability under § 1291, however, we look to categories of cases, not to particular injustices. See Carroll v. United States, 354 U. S. 394, 405 (1957) (“Appeal rights cannot depend on the facts of a particular case”); United States v. MacDonald, 435 U. S., at 857-858, n. 6. We believe that in the main, the issues that arise in forum non conveniens determinations will substantially overlap factual and legal issues of the underlying dispute, making such determinations unsuited for immediate appeal as of right under § 1291. Our conclusion that the denial of a motion to dismiss on the ground of forum non conveniens is not appealable under § 1291 is fortified by the availability of interlocutory review pursuant to 28 U. S.C § 1292(b). Under § 1292(b), a district court may certify a nonfinal order for interlocutory review when the order “involves a controlling question of law as to which there is substantial ground for difference of opinion and ... an immediate appeal from the order may materially advance the ultimate termination of the litigation.” A court of appeals may then, in its discretion, determine whether the order warrants, prompt review. See Coopers & Lybrand, 437 U. S., at 474-475. Section 1292(b) therefore provides an avenue for review of forum non conveniens determinations in appropriate cases. Ill We hold that neither an order denying a motion to dismiss on grounds that an extradited person is immune from civil process, nor an order denying a motion to dismiss on the ground of forum non conveniens, is a collateral order subject to appeal as a final judgment under 28 U. S. C. § 1291. The Court of Appeals therefore lacked jurisdiction to consider petitioner’s appeal. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. Petitioner’s probation order has since been modified and he has returned to Belgium after having provided security for the payment of the restitution. Although petitioner did not make a general appearance, the District Court proceeded with the case after the appeal was filed with the Court of Appeals. The District Court granted respondent’s motion for summary judgment and entered judgment for respondent on the RICO claim for treble damages of $1.8 million, plus attorney’s fees of $75,000. Biard v. Blair, No. CV 85-7378 JSL (JRx) (Apr. 6, 1987), App. to Brief for Respondents, A-3. The purposes behind the rule that a party must ordinarily raise all claims of error in a single appeal following final judgment are by now well known: “[The rule] emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of trial. Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of ‘avoiding] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.’” Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981), quoting Cobbledick v. United States, 309 U. S. 323, 325 (1940). Petitioner does not dispute that neither the extradition treaty with Switzerland, Treaty between the United States and Switzerland for the Extradition of Criminals, May 14, 1900, 31 Stat. 1928, T. S. No. 354 (1900), nor the relevant federal statutes governing extradition matters, see 18 U. S. C. §§ 3186, 3192, deal explicitly with the protection of an extradited person from civil suit. As petitioner acknowledges, if he had been properly served in Belgium or Switzerland prior to his extradition, or had been served while in the United States on other business, then he could rightly have been compelled to defend respondent’s civil suit. Petitioner thus does not contend that he never can be haled into court on the same complaint in the same forum, but argues that he is immune from service of process at this time and in this manner, “by taking advantage of an extraditee’s forced presence in this country.” See Reply Brief for Petitioner 5. See Carlenstolpe v. Merck & Co., 819 F. 2d 33, 36 (CA2 1987) (“[T]he determining factors in a forum non conveniens motion are ‘enmeshed’ in the underlying cause of action”); Partrederiet Treasure Saga v. Joy Manufacturing Co., 804 F. 2d 308, 310 (CA5 1986) (same); Rosenstein v. Merrell Dow Pharmaceuticals, 769 F. 2d 352, 354 (CA6 1985) (same); Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F. 2d 190, 195 (CA3 1983) (same). Only one Circuit has held that the denial of a motion to dismiss on the ground of forum non conveniens is immediately appealable under 28 U. S. C. § 1291. See Hodson v. A. H. Robins Co., 715 F. 2d 142, 145, n. 2 (CA4 1983). Petitioner argues that the forum non conveniens determination in this ease is especially worthy of immediate review because the District Court disposed of the motion summarily instead of making factual findings and articulating reasons for its decision. Petitioner essentially claims that the District Court’s failure to explain its determination in this case is a clear abuse of discretion, and such clear errors should be promptly appealable. For the reasons stated in the text, we refuse to fashion an exception from the general rule of nonappealibility for what petitioner describes as “facially apparent reversible error,” Brief for Petitioner 35. Cf. United States v. MacDonald, 435 U. S., at 857-858, n. 6; Coopers & Lybrand v. Livesay, 437 U. S. 463, 476 (1978). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice KAGANdelivered the opinion of the Court. For the second time in little more than a decade, Kansas and Nebraska ask this Court to settle a dispute over the States' rights to the waters of the Republican River Basin, as set out in an interstate compact. The first round of litigation ended with a settlement agreement designed to elaborate on, and promote future compliance with, the Compact's terms. The States now bring new claims against each other arising from the implementation of that settlement. Kansas seeks exceptional relief-both partial disgorgement of gains and an injunction-for Nebraska's conceded overconsumption of water. For its part, Nebraska requests amendment of a technical appendix to the settlement, so that allocations of water will faithfully reflect the parties' intent as expressed in both the body of that agreement and the Compact itself. We referred the case to a Special Master and now accept his recommendations as to appropriate equitable remedies: for Kansas, partial disgorgement but no injunction; and for Nebraska, reform of the appendix. I The Republican River originates in Colorado; crosses the northwestern corner of Kansas into Nebraska; flows through much of southwestern Nebraska; and finally cuts back into northern Kansas. Along with its many tributaries, the river drains a 24,900-square-mile watershed, called the Republican River Basin. The Basin contains substantial farmland, producing (among other things) wheat and corn. During the Dust Bowl of the 1930's, the Republican River Basin experienced an extended drought, interrupted once by a deadly flood. In response, the Federal Government proposed constructing reservoirs in the Basin to control flooding, as well as undertaking an array of irrigation projects to disperse the stored water. But the Government insisted that the three States of the Basin first agree to an allocation of its water resources. As a result of that prodding, the States negotiated and ratified the Republican River Compact; and in 1943, as required under the Constitution, Art. I, § 10, cl. 3, Congress approved that agreement. By act of Congress, the Compact thus became federal law. See Act of May 26, 1943, ch. 104, 57 Stat. 86. The Compact apportions among the three States the "virgin water supply originating in"-and, as we will later discuss, originating onlyin-the Republican River Basin. Compact Art. III; see infra,at 1059 - 1064. "Virgin water supply," as used in the Compact, means "the water supply within the Basin," in both the River and its tributaries, "undepleted by the activities of man." Compact Art. II. The Compact gives each State a set share of that supply-roughly, 49% to Nebraska, 40% to Kansas, and 11% to Colorado-for any "beneficial consumptive use." Id.,Art. IV; see Art. II (defining that term to mean "that use by which the water supply of the Basin is consumed through the activities of man"). In addition, the Compact charges the chief water official of each State with responsibility to jointly administer the agreement. See id.,Art. IX. Pursuant to that provision, the States created the Republican River Compact Administration (RRCA). The RRCA's chief task is to calculate the Basin's annual virgin water supply by measuring stream flow throughout the area, and to determine (retrospectively) whether each State's use of that water has stayed within its allocation. All was smooth sailing for decades, until Kansas complained to this Court about Nebraska's increased pumping of groundwater, resulting from that State's construction of "thousands of wells hydraulically connected to the Republican River and its tributaries." Bill of Complaint, O.T. 1997, No. 126, Orig., p. 5 (May 26, 1998). Kansas contended that such activity was subject to the Compact: To the extent groundwater pumping depleted stream flow in the Basin, it counted against the pumping State's annual allotment of water.Nebraska maintained, to the contrary, that groundwater pumping fell outside the Compact's scope, even if that activity diminished stream flow in the area. A Special Master we appointed favored Kansas's interpretation of the Compact; we summarily agreed, and recommitted the case to him for further proceedings. See Kansas v. Nebraska,530 U.S. 1272, 120 S.Ct. 2764, 147 L.Ed.2d 1003 (2000). The States then entered into negotiations, aimed primarily at determining how best to measure, and reflect in Compact accounting, the depletion of the Basin's stream flow due to groundwater pumping. During those discussions, the States also addressed a range of other matters affecting Compact administration. The talks bore fruit in 2002, when the States signed the Final Settlement Stipulation (Settlement). The Settlement established detailed mechanisms to promote compliance with the Compact's terms. The States agreed that the Settlement was not "intended to, nor could [it], change [their] respective rights and obligations under the Compact." Settlement § I(D). Rather, the agreement aimed to accurately measure the supply and use of the Basin's water, and to assist the States in staying within their prescribed limits. To smooth out year-to-year fluctuations and otherwise facilitate compliance, the Settlement based all Compact accounting on 5-year running averages, reduced to 2-year averages in "water-short" periods. Id.,§§ IV(D), V(B). That change gave each State a chance to compensate for one (or more) year's overuse with another (or more) year's underuse before exceeding its allocation. The Settlement further provided, in line with this Court's decision, that groundwater pumping would count as part of a State's consumption to the extent it depleted the Basin's stream flow. An appendix to the agreement called the "Accounting Procedures" described how a later-developed "Groundwater Model" (essentially, a mass of computer code) would perform those computations. Id.,App. C; id.,App. J1. And finally, the Settlement made clear, in accordance with the Compact, that a State's use of "imported water"-that is, water farmers bring into the area (usually for irrigation) that eventually seeps into the Republican River-would not count toward the State's allocation, because it did not originate in the Basin. Id., §§ II, IV(F). Once again, the Settlement identified the Accounting Procedures and Groundwater Model as the tools to calculate (so as to exclude) that consumption. But there were more rapids ahead: By 2007, Kansas and Nebraska each had complaints about how the Settlement was working. Kansas protested that in the 2005-2006 accounting period-the first for which the Settlement held States responsible-Nebraska had substantially exceeded its allocation of water. Nebraska, for its part, maintained that the Accounting Procedures and Groundwater Model were charging the State for use of imported water-specifically, for water originating in the Platte River Basin. The States brought those disputes to the RRCA and then to non-binding arbitration, in accordance with the Settlement's dispute resolution provisions. After failing to resolve the disagreements in those forums, Kansas sought redress in this Court, petitioning for both monetary and injunctive relief. We referred the case to a Special Master to consider Kansas's claims. See 563 U.S. ----, 131 S.Ct. 378, 178 L.Ed.2d 14 (2011). In that proceeding, Nebraska asserted a counterclaim requesting a modification of the Accounting Procedures to ensure that its use of Platte River water would not count toward its Compact allocation. After two years of conducting hearings, receiving evidence, and entertaining legal arguments, the Special Master issued his report and recommendations. The Master concluded that Nebraska had "knowingly failed" to comply with the Compact in the 2005-2006 accounting period, by consuming 70,869 acre-feet of water in excess of its prescribed share.Report 112. To remedy that breach, the Master proposed awarding Kansas $3.7 million for its loss, and another $1.8 million in partial disgorgement of Nebraska's still greater gains. The Master, however, thought that an injunction against Nebraska was not warranted. In addition, the Master recommended reforming the Accounting Procedures in line with Nebraska's request, to ensure that the State would not be charged with using Platte River water. Kansas and Nebraska each filed exceptions in this Court to parts of the Special Master's report.Nebraska objects to the Master's finding of a "knowing" breach and his call for partial disgorgement of its gains. Kansas asserts that the Master should have recommended both a larger disgorgement award and injunctive relief; the State also objects to his proposed change to the Accounting Procedures. In reviewing those claims, this Court gives the Special Master's factual findings "respect and a tacit presumption of correctness." Colorado v. New Mexico,467 U.S. 310, 317, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984). But we conduct an "independent review of the record," and assume "the ultimate responsibility for deciding" all matters. Ibid.Having carried out that careful review, we now overrule all exceptions and adopt the Master's recommendations. II The Constitution gives this Court original jurisdiction to hear suits between the States. See Art. III, § 2. Proceedings under that grant of jurisdiction are "basically equitable in nature." Ohio v. Kentucky,410 U.S. 641, 648, 93 S.Ct. 1178, 35 L.Ed.2d 560 (1973). When the Court exercises its original jurisdiction over a controversy between two States, it serves "as a substitute for the diplomatic settlement of controversies between sovereigns and a possible resort to force." North Dakota v. Minnesota,263 U.S. 365, 372-373, 44 S.Ct. 138, 68 L.Ed. 342 (1923). That role significantly "differ[s] from" the one the Court undertakes "in suits between private parties." Id.,at 372, 44 S.Ct. 138; see Frankfurter & Landis, The Compact Clause of the Constitution-A Study in Interstate Adjustments, 34 Yale L.J. 685, 705 (1925)(When a "controversy concerns two States we are at once in a world wholly different from that of a law-suit between John Doe and Richard Roe over the metes and bounds of Blackacre"). In this singular sphere, "the court may regulate and mould the process it uses in such a manner as in its judgment will best promote the purposes of justice." Kentucky v. Dennison,24 How. 66, 98, 16 L.Ed. 717 (1861). Two particular features of this interstate controversy further distinguish it from a run-of-the-mill private suit and highlight the essentially equitable character of our charge. The first relates to the subject matter of the Compact and Settlement: rights to an interstate waterway. The second concerns the Compact's status as not just an agreement, but a federal law. Before proceeding to the merits of this dispute, we say a few words about each. This Court has recognized for more than a century its inherent authority, as part of the Constitution's grant of original jurisdiction, to equitably apportion interstate streams between States. In Kansas v. Colorado,185 U.S. 125, 145, 22 S.Ct. 552, 46 L.Ed. 838 (1902), we confronted a simple consequence of geography: An upstream State can appropriate all water from a river, thus "wholly depriv[ing]" a downstream State "of the benefit of water" that "by nature" would flow into its territory. In such a circumstance, the downstream State lacks the sovereign's usual power to respond-the capacity to "make war[,]... grant letters of marque and reprisal," or even enter into agreements without the consent of Congress. Id.,at 143, 22 S.Ct. 552(internal quotation marks omitted). "Bound hand and foot by the prohibitions of the Constitution,... a resort to the judicial power is the only means left" for stopping an inequitable taking of water. Id.,at 144, 22 S.Ct. 552(quoting Rhode Island v. Massachusetts,12 Pet. 657, 726, 9 L.Ed. 1233 (1838)). This Court's authority to apportion interstate streams encourages States to enter into compacts with each other. When the division of water is not "left to the pleasure" of the upstream State, but States instead "know[ ] that some tribunal can decide on the right," then "controversies will [probably] be settled by compact." Kansas v. Colorado,185 U.S., at 144, 22 S.Ct. 552. And that, of course, is what happened here: Kansas and Nebraska negotiated a compact to divide the waters of the Republican River and its tributaries. Our role thus shifts: It is now to declare rights under the Compact and enforce its terms. See Texas v. New Mexico,462 U.S. 554, 567, 103 S.Ct. 2558, 77 L.Ed.2d 1 (1983). But in doing so, we remain aware that the States bargained for those rights in the shadow of our equitable apportionment power-that is, our capacity to prevent one State from taking advantage of another. Each State's "right to invoke the original jurisdiction of this Court [is] an important part of the context" in which any compact is made. Id.,at 569, 103 S.Ct. 2558. And it is "difficult to conceive" that a downstream State "would trade away its right" to our equitable apportionment if, under such an agreement, an upstream State could avoid its obligations or otherwise continue overreaching. Ibid.Accordingly, our enforcement authority includes the ability to provide the remedies necessary to prevent abuse. We may invoke equitable principles, so long as consistent with the compact itself, to devise "fair... solution[s]" to the state-parties' disputes and provide effective relief for their violations. Texas v. New Mexico,482 U.S. 124, 134, 107 S.Ct. 2279, 96 L.Ed.2d 105 (1987)(supplying an "additional enforcement mechanism" to ensure an upstream State's compliance with a compact). And that remedial authority gains still greater force because the Compact, having received Congress's blessing, counts as federal law. See Cuyler v. Adams,449 U.S. 433, 438, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981)("[C]ongressional consent transforms an interstate compact... into a law of the United States"). Of course, that legal status underscores a limit on our enforcement power: We may not "order relief inconsistent with [a compact's] express terms." Texas v. New Mexico,462 U.S., at 564, 103 S.Ct. 2558. But within those limits, the Court may exercise its full authority to remedy violations of and promote compliance with the agreement, so as to give complete effect to public law. As we have previously put the point: When federal law is at issue and "the public interest is involved," a federal court's "equitable powers assume an even broader and more flexible character than when only a private controversy is at stake." Porter v. Warner Holding Co.,328 U.S. 395, 398, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946); see Virginian R. Co. v. Railway Employees,300 U.S. 515, 552, 57 S.Ct. 592, 81 L.Ed. 789 (1937)("Courts of equity may, and frequently do, go much farther" to give "relief in furtherance of the public interest than they are accustomed to go when only private interests are involved").In exercising our jurisdiction, we may "mould each decree to the necessities of the particular case" and "accord full justice" to all parties.Porter,328 U.S., at 398, 66 S.Ct. 1086(internal quotation marks omitted); see Kentucky v. Dennison,65 U.S., at 98. These principles inform our consideration of the dispute before us. III We first address Nebraska's breach of the Compact and Settlement and the remedies appropriate to that violation. Both parties assent to the Special Master's finding that in 2005-2006 Nebraska exceeded its allocation of water by 70,869 acre-feet-about 17% more than its proper share. See Report 88-89; App. B to Reply Brief for Kansas. They similarly agree that this overconsumption resulted in a $3.7 million loss to Kansas; and Nebraska has agreed to pay those damages. See Reply Brief for Kansas 9, 55; Brief for Nebraska 7. But the parties dispute whether Nebraska's conduct warrants additional relief. The Master determined that Nebraska "knowingly exposed Kansas to a substantial risk" of breach, and so "knowingly failed" to comply with the Compact. Report 130, 112; see supra,at 1050 - 1051. Based in part on that finding, he recommended disgorgement of $1.8 million, which he described as "a small portion of the amount by which Nebraska's gain exceeds Kansas's loss." Report 179. But he declined to grant Kansas's request for injunctive relief against Nebraska. See id.,at 180-186. As noted previously, see supra,at 1050 - 1051, each party finds something to dislike in the Master's handling of this issue: Nebraska contests his finding of a "knowing" Compact violation and his view that disgorgement is appropriate; Kansas wants a larger disgorgement award and an injunction regulating Nebraska's future conduct. We address those exceptions in turn. A 1 When they entered into the Settlement in 2002, the States understood that Nebraska would have to significantly reduce its consumption of Republican River water. See Report 106. The Settlement, after all, charged Nebraska for its depletion of the Basin's stream flow due to groundwater pumping-an amount the State had not previously counted toward its allotment. See supra,at 1049 - 1050. Nebraska did not have to achieve all that reduction in the next year: The Settlement's adoption of multi-year averages to measure consumption allowed the State some time-how much depended on whether and when "water-short" conditions existed-to come into compliance. See Settlement §§ IV(D), V(B)(2)(e)(i), App. B; supra,at 1050. As it turned out, the area experienced a drought in 2006; accordingly, Nebraska first needed to demonstrate compliance in that year, based on the State's average consumption of water in 2005 and 2006.And at that initial compliance check, despite having enjoyed several years to prepare, Nebraska came up markedly short. Nebraska contends, contrary to the Master's finding, that it could not have anticipated breaching the Compact in those years. By its account, the State took "persistent and earnest"-indeed, "extraordinary"-steps to comply with the agreement, including amending its water law to reduce groundwater pumping. Brief for Nebraska 9, 17. And Nebraska could not have foreseen (or so it claims) that those measures would prove inadequate. First, Nebraska avers, drought conditions between 2002 and 2006 reduced the State's yearly allotments to historically low levels; the Master was thus "unfair to suggest Nebraska should have anticipated what never before was known." Id.,at 17. And second, Nebraska stresses, the RRCA determines each State's use of water only retrospectively, calculating each spring what a State consumed the year before; hence, Nebraska "could not have known" that it was out of compliance in 2006 "until early 2007-when it was already too late." Id.,at 18; see supra,at 1049 - 1050. But that argument does not hold water: Rather, as the Special Master found, Nebraska failed to put in place adequate mechanisms for staying within its allotment in the face of a known substantial risk that it would otherwise violate Kansas's rights. See Report 105-112, 130. As an initial matter, the State's efforts to reduce its use of Republican River water came at a snail-like pace. The Nebraska Legislature waited a year and a half after signing the Settlement to amend the State's water law. See § 55, 2004 Neb. Laws p. 352, codified at Neb.Rev.Stat. 46-715. And the fix the legislature adopted-the development of regional water management plans meant to decrease groundwater pumping-did not go into effect for still another year. Nebraska thus wasted the time following the Settlement-a crucial period to begin bringing down the State's consumption. Indeed, the State's overuse of Republican River water actually rose significantly from 2003 through 2005, making compliance at the eventual day of reckoning ever more difficult to achieve. See Report 108-109.And to make matters worse, Nebraska knew that decreasing pumping does not instantly boost stream flow: A time lag, of as much as a year, exists between the one and the other. See id.,at 106. So Nebraska's several-year delay in taking any corrective action foreseeably raised the risk that the State would breach the Compact. Still more important, what was too late was also too little. The water management plans finally adopted in 2005 called for only a 5% reduction in groundwater pumping, although no evidence suggested that would suffice. The testimony presented to the Special Master gave not a hint that the state and local officials charged with formulating those plans had conducted a serious appraisal of how much change would be necessary. See id.,at 107-108. And the State had created no way to enforce even the paltry goal the plans set. The Nebraska Legislature chose to leave operational control of water use in the hands of district boards consisting primarily of irrigators, who are among the immediate beneficiaries of pumping. No sanctions or other mechanisms held those local bodies to account if they failed to meet the plans' benchmark. They bore no legal responsibility for complying with the Compact, and assumed no share of the penalties the State would pay for violations. See id.,at 110-111. Given such a dearth of tools or incentives to achieve compliance, the wonder is only that Nebraska did not still further exceed its allotment. Nor do Nebraska's excuses change our view of its misbehavior. True enough, the years following the Settlement were exceptionally arid. But the Compact and Settlement (unsurprisingly) contemplate wet and dry years alike. By contrast, Nebraska's plans could have brought it into compliance only if the Basin had received a stretch of copious rainfall. See id.,at 109-110. And Nebraska cannot take refuge in the timing of the RRCA's calculations. By the time the compliance check of 2006 loomed, Nebraska knew that it had exceeded its allotment (by an ever greater margin) in each of the three previous years. As Nebraska's own witnesses informed the Special Master, they "could clearly see" by the beginning of 2006 "that [the State] had not done enough" to come into compliance. Id.,at 109 (quoting Tr. 1333 (Aug. 21, 2012)). Indeed, in that year, Nebraska began purchasing its farmers' rights to surface water in order to mitigate its anticipated breach. But that last-minute effort, in the Master's words, "fell woefully short"-as at that point could only have been expected. Report 109. From the outset of the Settlement through 2006, Nebraska headed-absent the luckiest of circumstances-straight toward a Compact violation. For these reasons, we agree with the Master's conclusion that Nebraska "knowingly exposed Kansas to a substantial risk" of receiving less water than the Compact provided, and so "knowingly failed" to comply with the obligations that agreement imposed. Id.,at 130, 112. In the early years of the Settlement, as the Master explained, Nebraska's compliance efforts were not only inadequate, but also "reluctant," showing a disinclination "to take [the] firm action" necessary "to meet the challenges of foreseeably varying conditions in the Basin." Id.,at 105. Or said another way, Nebraska recklessly gambled with Kansas's rights, consciously disregarding a substantial probability that its actions would deprive Kansas of the water to which it was entitled. See Tr. 1870 (Aug. 23, 2012) (Master's statement that Nebraska showed "reckless indifference as to compliance back in '05 and '06"). 2 After determining that Kansas lost $3.7 million from Nebraska's breach, the Special Master considered the case for an additional monetary award. Based on detailed evidence, not contested here, he concluded that an acre-foot of water is substantially more valuable on farmland in Nebraska than in Kansas. That meant Nebraska's reward for breaching the Compact was "much larger than Kansas' loss, likely by more than several multiples." Report 178. Given the circumstances, the Master thought that Nebraska should have to disgorge part of that additional gain, to the tune of $1.8 million. In making that recommendation, he relied on his finding-which we have just affirmed-of Nebraska's culpability. See id.,at 130. He also highlighted this Court's broad remedial powers in compact litigation, noting that such cases involve not private parties' private quarrels, but States' clashes over federal law. See id.,at 131, 135; supra,at 1051 - 1053. Nebraska (along with the dissent) opposes the Special Master's disgorgement proposal on the ground that the State did not "deliberately act[ ]" to violate the Compact. Reply Brief for Nebraska 33; see post,at 1051 - 1052. Relying on private contract law, Nebraska cites a Restatement provision declaring that a court may award disgorgement in certain cases in which "a deliberate breach of contract results in profit to the defaulting promisor." Restatement (Third) of Restitution and Unjust Enrichment § 39(1) (2010)(Restatement); see Reply Brief for Nebraska 32. Nebraska then points out that the Master, even though finding a "knowing" exposure of Kansas to significant risk, rejected the idea that "Nebraska officials [had] deliberately set out to violate the Compact." Brief for Nebraska 16 (quoting Report 111). Accordingly, Nebraska concludes, no disgorgement is warranted. But that argument fails to come to terms with what the Master properly understood as the wrongful nature of Nebraska's conduct. True enough, as the Master said, that Nebraska did not purposefully set out to breach the Compact. But still, as he also found, the State "knowingly exposed Kansas to a substantial risk" of breach, and blithely proceeded. Report 130. In some areas of the law and for certain purposes, the distinction between purposefully invading and recklessly disregarding another's rights makes no difference. See Bullock v. BankChampaign, N.A.,569 U.S. ----, ----, 133 S.Ct. 1754, 1759, 185 L.Ed.2d 922 (2013)("We include as intentional... reckless conduct" of the kind that the law "often treats as the equivalent"); Ernst & Ernst v. Hochfelder,425 U.S. 185, 193-194, n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976)("[R]ecklessness is [sometimes] considered to be a form of intentional conduct for purposes of imposing liability"). And indeed, the very Restatement Nebraska relies on treats the two similarly. It assimilates "deliberate[ness]" to "conscious wrongdoing," which it defines as acting (as Nebraska did) "despite a known risk that the conduct... violates [another's] rights." Restatement § 39, Comment f; id.,§ 51(3). Conversely, the Restatement distinguishes "deliberate[ness]" from behavior (not akin to Nebraska's) amounting to mere "inadvertence, negligence, or unsuccessful attempt at performance." Id.,§ 39, Comment f. And whatever is true of a private contract action, the case for disgorgement becomes still stronger when one State gambles with another State's rights to a scarce natural resource. From the time this Court began to apportion interstate rivers, it has recognized part of its role as guarding against upstream States' inequitable takings of water. And as we have noted, that concern persists even after States enter into a compact: This Court may then exercise remedial authority to ensure compliance with the compact's terms-thus preventing a geographically favored State from appropriating more than its share of a river. See supra,at 1052. Indeed, the formation of such a compact provides this Court with enhanced remedial power because, as we have described, the agreement is also an Act of Congress, and its breach a violation of federal law. See supra,at 1052 - 1053; Porter,328 U.S. 395, 66 S.Ct. 1086(exercising equitable power to disgorge profits gained from violating a federal statute). Consistent with those principles, we have stated that awarding actual damages for a compact's infringement may be inadequate, because that remedy alone "would permit [an upstream State] to ignore its obligation to deliver water as long as it is willing" to pay that amount. Texas v. New Mexico,482 U.S., at 132, 107 S.Ct. 2279. And as the Solicitor General noted in argument here, "[i]t is important that water flows down the river, not just money." Tr. of Oral Arg. 24. Accordingly, this Court may order disgorgement of gains, if needed to stabilize a compact and deter future breaches, when a State has demonstrated reckless disregard of another, more vulnerable State's rights under that instrument. Assessed in this light, a disgorgement order constitutes a "fair and equitable" remedy for Nebraska's breach. Texas v. New Mexico, 482 U.S., at 134, 107 S.Ct. 2279. "Possessing the privilege of being upstream," Nebraska can (physically, though not legally) drain all the water it wants from the Republican River. Report 130. And the higher value of water on Nebraska's farmland than on Kansas's means that Nebraska can take water that under the Compact should go to Kansas, pay Kansas actual damages, and still come out ahead. That is nearly a recipe for breach-for an upstream State to refuse to deliver to its downstream neighbor the water to which the latter is entitled. And through 2006, Nebraska took full advantage of its favorable position, eschewing steps that would effectively control groundwater pumping and thus exceeding its allotment. In such circumstances, a disgorgement award appropriately reminds Nebraska of its legal obligations, deters future violations, and promotes the Compact's successful administration. See Porter,328 U.S., at 400, 66 S.Ct. 1086("Future compliance may be more definitely assured if one is compelled to restore one's illegal gains").We thus reject Nebraska's exception to the Master's proposed remedy. B Kansas assails the Special Master's recommended disgorgement award from the other direction, claiming that it is too low to ensure Nebraska's future compliance. See Brief for Kansas 55-59. Notably, Kansas does not insist on all of Nebraska's gain. It recognizes the difficulty of ascertaining that figure, given the evidence the parties presented. See id.,at 56; see also Report 177-178. And still more important, it "agrees" with the Master's view that the Court should select a "fair point on th[e] spectrum" between no profits and full profits, based on the totality of facts and interests in the case. Brief for Kansas 57 (quoting Report 135); see Sur-Reply Brief for Kansas 5. In setting that point, however, Kansas comes up with a higher number-or actually, a trio of them. The State first asks us to award "treble damages of $11.1 million," then suggests that we can go "up to roughly $25 million," and finally proposes a "1:1 loss-to-disgorgement ratio," which means $3.7 million of Nebraska's gains. Brief for Kansas 57; Sur-Reply Brief for Kansas 5, 7. We prefer to stick with the Master's single number. As an initial matter, we agree with both the Master and Kansas that disgorgement need not be all or nothing. See, e.g.,1 D. Dobbs, Law of Remedies § 2.4(1), p. 92 (2d ed. 1993) ("Balancing of equities and hardships may lead the court to grant some equitable relief but not" the full measure requested); Restatement § 39, Comment i; id.,§ 50, Comment a; National Security Systems, Inc. v. Iola,700 F.3d 65, 80-81, 101-102 (C.A.3 2012). In exercising our original jurisdiction, this Court recognizes that "flexibility [is] inherent in equitable remedies," Brown v. Plata,563 U.S. ----, ----, 131 S.Ct. 1910, 1944, 179 L.Ed.2d 969 (2011)(quoting Hutto v. Finney,437 U.S. 678, 687, n. 9, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)), and awards them "with reference to the facts of the particular case," Texas v. New Mexico,482 U.S., at 131, 107 S.Ct. 2279(quoting Haffner v. Dobrinski,215 U.S. 446, 450, 30 S.Ct. 172, 54 L.Ed. 277 (1910)). So if partial disgorgement will serve to stabilize a compact by conveying an effective message to the breaching party that it must work hard to meet its future obligations, then the Court has discretion to order only that much. Cf. Kansas v. Colorado,533 U.S. 1, 14, 121 S.Ct. 2023, 150 L.Ed.2d 72 (2001)(concluding that a master "acted properly in carefully analyzing the facts of the case and in only awarding as much prejudgment interest as was required by a balancing of the equities"). And we agree with the Master's judgment that a relatively small disgorgement award suffices here. That is because, as the Master detailed, Nebraska altered its conduct after the 2006 breach, and has complied with the Compact ever since. See Report 112-118, 180. In 2007, Nebraska enacted new legislation establishing a mechanism to accurately forecast the State's annual allotment of Republican River water. § 23, 2007 Neb. Laws p. 1600, codified at Neb.Rev.Stat. 46-715(6). Further, a new round of water management plans called for localities to reduce groundwater pumping by five times as much as the old (5%) target. And most important, those plans implemented a system for the State, in dry years, to force districts to curtail both surface water use and groundwater pumping. That "regulatory back-stop," as Nebraska calls it, corrects the State's original error of leaving all control of water use to unaccountable local actors. Report 113 (quoting Direct Testimony of Brian Dunnigan, Director, Nebraska Department of Resources ¶ 43 (July 25, 2012)); see supra,at 1054 - 1055. Testimony before the Master showed that if the scheme had been in effect between 2002 and 2006, Nebraska would have lived within its allocation throughout that period. See Report 117. The Master thus reasonably concluded that the current water management plans, if implemented in Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

K

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice SOTOMAYORdelivered the opinion of the Court. Respondents brought a Fourth Amendment challenge to a provision of the Los Angeles Municipal Code that compels "[e]very operator of a hotel to keep a record" containing specified information concerning guests and to make this record "available to any officer of the Los Angeles Police Department for inspection" on demand. Los Angeles Municipal Code §§ 41.49(2), (3)(a), (4) (2015). The questions presented are whether facial challenges to statutes can be brought under the Fourth Amendment and, if so, whether this provision of the Los Angeles Municipal Code is facially invalid. We hold facial challenges can be brought under the Fourth Amendment. We further hold that the provision of the Los Angeles Municipal Code that requires hotel operators to make their registries available to the police on demand is facially unconstitutional because it penalizes them for declining to turn over their records without affording them any opportunity for precompliance review. I A Los Angeles Municipal Code (LAMC) § 41.49 requires hotel operators to record information about their guests, including: the guest's name and address; the number of people in each guest's party; the make, model, and license plate number of any guest's vehicle parked on hotel property; the guest's date and time of arrival and scheduled departure date; the room number assigned to the guest; the rate charged and amount collected for the room; and the method of payment. § 41.49(2). Guests without reservations, those who pay for their rooms with cash, and any guests who rent a room for less than 12 hours must present photographic identification at the time of check-in, and hotel operators are required to record the number and expiration date of that document. § 41.49(4). For those guests who check in using an electronic kiosk, the hotel's records must also contain the guest's credit card information. § 41.49(2)(b). This information can be maintained in either electronic or paper form, but it must be "kept on the hotel premises in the guest reception or guest check-in area or in an office adjacent" thereto for a period of 90 days. § 41.49(3)(a). Section 41.49(3)(a)-the only provision at issue here-states, in pertinent part, that hotel guest records "shall be made available to any officer of the Los Angeles Police Department for inspection," provided that "[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business." A hotel operator's failure to make his or her guest records available for police inspection is a misdemeanor punishable by up to six months in jail and a $1,000 fine. § 11.00(m) (general provision applicable to entire LAMC). B In 2003, respondents, a group of motel operators along with a lodging association, sued the city of Los Angeles (City or petitioner) in three consolidated cases challenging the constitutionality of § 41.49(3)(a). They sought declaratory and injunctive relief. The parties "agree[d] that the sole issue in the... action [would be] a facial constitutional challenge" to § 41.49(3)(a) under the Fourth Amendment. App. 195. They further stipulated that respondents have been subjected to mandatory record inspections under the ordinance without consent or a warrant. Id.,at 194-195. Following a bench trial, the District Court entered judgment in favor of the City, holding that respondents' facial challenge failed because they lacked a reasonable expectation of privacy in the records subject to inspection. A divided panel of the Ninth Circuit affirmed on the same grounds. 686 F.3d 1085 (2012). On rehearing en banc, however, the Court of Appeals reversed. 738 F.3d 1058, 1065 (2013). The en banc court first determined that a police officer's nonconsensual inspection of hotel records under § 41.49 is a Fourth Amendment "search" because "[t]he business records covered by § 41.49 are the hotel's private property" and the hotel therefore "has the right to exclude others from prying into the[ir] contents." Id.,at 1061. Next, the court assessed "whether the searches authorized by § 41.49 are reasonable." Id.,at 1063. Relying on Donovan v. Lone Steer, Inc.,464 U.S. 408, 104 S.Ct. 769, 78 L.Ed.2d 567 (1984), and See v. Seattle,387 U.S. 541, 87 S.Ct. 1741, 18 L.Ed.2d 930 (1967), the court held that § 41.49 is facially unconstitutional "as it authorizes inspections" of hotel records "without affording an opportunity to 'obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply.' " 738 F.3d, at 1065(quoting See,387 U.S., at 545, 87 S.Ct. 1737). Two dissenting opinions were filed. The first dissent argued that facial relief should rarely be available for Fourth Amendment challenges, and was inappropriate here because the ordinance would be constitutional in those circumstances where police officers demand access to hotel records with a warrant in hand or exigent circumstances justify the search. 738 F.3d, at 1065-1070(opinion of Tallman, J.). The second dissent conceded that inspections under § 41.49 constitute Fourth Amendment searches, but faulted the majority for assessing the reasonableness of these searches without accounting for the weakness of the hotel operators' privacy interest in the content of their guest registries. Id.,at 1070-1074(opinion of Clifton, J.). We granted certiorari, 574 U.S. ----, 135 S.Ct. 400, 190 L.Ed.2d 288 (2014), and now affirm. II We first clarify that facial challenges under the Fourth Amendment are not categorically barred or especially disfavored. A A facial challenge is an attack on a statute itself as opposed to a particular application. While such challenges are "the most difficult... to mount successfully," United States v. Salerno,481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), the Court has never held that these claims cannot be brought under any otherwise enforceable provision of the Constitution. Cf. Fallon, Fact and Fiction About Facial Challenges, 99 Cal. L.Rev. 915, 918 (2011)(pointing to several Terms in which "the Court adjudicated more facial challenges on the merits than it did as-applied challenges"). Instead, the Court has allowed such challenges to proceed under a diverse array of constitutional provisions. See, e.g.,Sorrell v. IMS Health Inc.,564 U.S. ----, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011)(First Amendment); District of Columbia v. Heller,554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)(Second Amendment); Chicago v. Morales,527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)(Due Process Clause of the Fourteenth Amendment);Kraft Gen. Foods, Inc. v. Iowa Dept. of Revenue and Finance,505 U.S. 71, 112 S.Ct. 2365, 120 L.Ed.2d 59 (1992)(Foreign Commerce Clause). Fourth Amendment challenges to statutes authorizing warrantless searches are no exception. Any claim to the contrary reflects a misunderstanding of our decision in Sibron v. New York,392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). In Sibron,two criminal defendants challenged the constitutionality of a statute authorizing police to, among other things, "stop any person abroad in a public place whom [they] reasonably suspec[t] is committing, has committed or is about to commit a felony." Id.,at 43, 88 S.Ct. 1889(quoting then N.Y. Code Crim. Proc. § 180-a). The Court held that the search of one of the defendants under the statute violated the Fourth Amendment, 392 U.S., at 59, 62, 88 S.Ct. 1889but refused to opine more broadly on the statute's validity, stating that "[t]he constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case." Id.,at 59, 88 S.Ct. 1889. This statement from Sibron-which on its face might suggest an intent to foreclose all facial challenges to statutes authorizing warrantless searches-must be understood in the broader context of that case. In the same section of the opinion, the Court emphasized that the "operative categories" of the New York law at issue were "susceptible of a wide variety of interpretations," id.,at 60, 88 S.Ct. 1889and that "[the law] was passed too recently for the State's highest court to have ruled upon many of the questions involving potential intersections with federal constitutional guarantees," id.,at 60, n. 20, 88 S.Ct. 1889. Sibronthus stands for the simple proposition that claims for facial relief under the Fourth Amendment are unlikely to succeed when there is substantial ambiguity as to what conduct a statute authorizes: Where a statute consists of "extraordinarily elastic categories," it may be "impossible to tell" whether and to what extent it deviates from the requirements of the Fourth Amendment. Id.,at 59, 61, n. 20, 88 S.Ct. 1889. This reading of Sibronis confirmed by subsequent precedents. Since Sibron,the Court has entertained facial challenges under the Fourth Amendment to statutes authorizing warrantless searches. See, e.g.,Vernonia School District 47J v. Acton,515 U.S. 646, 648, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995)("We granted certiorari to decide whether" petitioner's student athlete drug testing policy "violates the Fourth and Fourteenth Amendments to the United States Constitution"); Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 633, n. 10, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)( "[R]espondents have challenged the administrative scheme on its face. We deal therefore with whether the [drug] tests contemplated by the regulation can everbe conducted"); cf. Illinois v. Krull,480 U.S. 340, 354, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987)("[A] person subject to a statute authorizing searches without a warrant or probable cause may bring an action seeking a declaration that the statute is unconstitutional and an injunction barring its implementation"). Perhaps more importantly, the Court has on numerous occasions declared statutes facially invalid under the Fourth Amendment. For instance, in Chandler v. Miller,520 U.S. 305, 308-309, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997), the Court struck down a Georgia statute requiring candidates for certain state offices to take and pass a drug test, concluding that this "requirement... [did] not fit within the closely guarded category of constitutionally permissible suspicionless searches." Similar examples abound. See, e.g.,Ferguson v. Charleston,532 U.S. 67, 86, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001)(holding that a hospital policy authorizing "nonconsensual, warrantless, and suspicionless searches" contravened the Fourth Amendment); Payton v. New York,445 U.S. 573, 574, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)(holding that a New York statute "authoriz[ing] police officers to enter a private residence without a warrant and with force, if necessary, to make a routine felony arrest" was "not consistent with the Fourth Amendment"); Torres v. Puerto Rico,442 U.S. 465, 466, 471, 99 S.Ct. 2425, 61 L.Ed.2d 1 (1979)(holding that a Puerto Rico statute authorizing "police to search the luggage of any person arriving in Puerto Rico from the United States" was unconstitutional because it failed to require either probable cause or a warrant). B Petitioner principally contends that facial challenges to statutes authorizing warrantless searches must fail because such searches will never be unconstitutional in all applications. Cf. Salerno,481 U.S., at 745, 107 S.Ct. 2095(to obtain facial relief the party seeking it "must establish that no set of circumstances exists under which the [statute] would be valid"). In particular, the City points to situations where police are responding to an emergency, where the subject of the search consents to the intrusion, and where police are acting under a court-ordered warrant. See Brief for Petitioner 19-20. While petitioner frames this argument as an objection to respondents' challenge in this case, its logic would preclude facial relief in every Fourth Amendment challenge to a statute authorizing warrantless searches. For this reason alone, the City's argument must fail: The Court's precedents demonstrate not only that facial challenges to statutes authorizing warrantless searches can be brought, but also that they can succeed. See Part II-A, supra. Moreover, the City's argument misunderstands how courts analyze facial challenges. Under the most exacting standard the Court has prescribed for facial challenges, a plaintiff must establish that a "law is unconstitutional in all of its applications." Washington State Grange v. Washington State Republican Party,552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). But when assessing whether a statute meets this standard, the Court has considered only applications of the statute in which it actually authorizes or prohibits conduct. For instance, in Planned Parenthood of Southeastern Pa. v. Casey,505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), the Court struck down a provision of Pennsylvania's abortion law that required a woman to notify her husband before obtaining an abortion. Those defending the statute argued that facial relief was inappropriate because most women voluntarily notify their husbands about a planned abortion and for them the law would not impose an undue burden. The Court rejected this argument, explaining: The "[l]egislation is measured for consistency with the Constitution by its impact on those whose conduct it affects.... The proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant." Id.,at 894, 112 S.Ct. 2791. Similarly, when addressing a facial challenge to a statute authorizing warrantless searches, the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant. If exigency or a warrant justifies an officer's search, the subject of the search must permit it to proceed irrespective of whether it is authorized by statute. Statutes authorizing warrantless searches also do no work where the subject of a search has consented. Accordingly, the constitutional "applications" that petitioner claims prevent facial relief here are irrelevant to our analysis because they do not involve actual applications of the statute. III Turning to the merits of the particular claim before us, we hold that § 41.49(3)(a) is facially unconstitutional because it fails to provide hotel operators with an opportunity for precompliance review. A The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." It further provides that "no Warrants shall issue, but upon probable cause." Based on this constitutional text, the Court has repeatedly held that "'searches conducted outside the judicial process, without prior approval by [a] judge or [a] magistrate [judge], are per seunreasonable... subject only to a few specifically established and well-delineated exceptions.' " Arizona v. Gant,556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009)(quoting Katz v. United States,389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). This rule "applies to commercial premises as well as to homes." Marshall v. Barlow's, Inc.,436 U.S. 307, 312, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Search regimes where no warrant is ever required may be reasonable where "'special needs... make the warrant and probable-cause requirement impracticable,' " Skinner,489 U.S., at 619, 109 S.Ct. 1402(quoting Griffin v. Wisconsin,483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)(some internal quotation marks omitted)), and where the "primary purpose" of the searches is "[d]istinguishable from the general interest in crime control," Indianapolis v. Edmond,531 U.S. 32, 44, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Here, we assume that the searches authorized by § 41.49 serve a "special need" other than conducting criminal investigations: They ensure compliance with the recordkeeping requirement, which in turn deters criminals from operating on the hotels' premises.The Court has referred to this kind of search as an "administrative searc[h]." Camara v. Municipal Court of City and County of San Francisco,387 U.S. 523, 534, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Thus, we consider whether § 41.49 falls within the administrative search exception to the warrant requirement. The Court has held that absent consent, exigent circumstances, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker. See See,387 U.S., at 545, 87 S.Ct. 1737; Lone Steer,464 U.S., at 415, 104 S.Ct. 769(noting that an administrative search may proceed with only a subpoena where the subpoenaed party is sufficiently protected by the opportunity to "question the reasonableness of the subpoena, before suffering any penalties for refusing to comply with it, by raising objections in an action in district court"). And, we see no reason why this minimal requirement is inapplicable here. While the Court has never attempted to prescribe the exact form an opportunity for precompliance review must take, the City does not even attempt to argue that § 41.49(3)(a) affords hotel operators any opportunity whatsoever. Section 41.49(3)(a) is, therefore, facially invalid. A hotel owner who refuses to give an officer access to his or her registry can be arrested on the spot. The Court has held that business owners cannot reasonably be put to this kind of choice. Camara,387 U.S., at 533, 87 S.Ct. 1727(holding that "broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty"). Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests. Even if a hotel has been searched 10 times a day, every day, for three months, without any violation being found, the operator can only refuse to comply with an officer's demand to turn over the registry at his or her own peril. To be clear, we hold only that a hotel owner must be afforded an opportunityto have a neutral decisionmaker review an officer's demand to search the registry before he or she faces penalties for failing to comply. Actual review need only occur in those rare instances where a hotel operator objects to turning over the registry. Moreover, this opportunity can be provided without imposing onerous burdens on those charged with an administrative scheme's enforcement. For instance, respondents accept that the searches authorized by § 41.49(3)(a) would be constitutional if they were performed pursuant to an administrative subpoena. Tr. of Oral Arg. 36-37. These subpoenas, which are typically a simple form, can be issued by the individual seeking the record-here, officers in the field-without probable cause that a regulation is being infringed. See See,387 U.S., at 544, 87 S.Ct. 1737("[T]he demand to inspect may be issued by the agency"). Issuing a subpoena will usually be the full extent of an officer's burden because "the great majority of businessmen can be expected in normal course to consent to inspection without warrant." Barlow's, Inc.,436 U.S., at 316, 98 S.Ct. 1816. Indeed, the City has cited no evidence suggesting that without an ordinance authorizing on-demand searches, hotel operators would regularly refuse to cooperate with the police. In those instances, however, where a subpoenaed hotel operator believes that an attempted search is motivated by illicit purposes, respondents suggest it would be sufficient if he or she could move to quash the subpoena before any search takes place. Tr. of Oral Arg. 38-39. A neutral decisionmaker, including an administrative law judge, would then review the subpoenaed party's objections before deciding whether the subpoena is enforceable. Given the limited grounds on which a motion to quash can be granted, such challenges will likely be rare. And, in the even rarer event that an officer reasonably suspects that a hotel operator may tamper with the registry while the motion to quash is pending, he or she can guard the registry until the required hearing can occur, which ought not take long. Riley v. California,573 U.S. ----, 134 S.Ct. 2473, 2486, 189 L.Ed.2d 430 (2014)(police may seize and hold a cell phone "to prevent destruction of evidence while seeking a warrant"); Illinois v. McArthur,531 U.S. 326, 334, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001)(citing cases upholding the constitutionality of "temporary restraints where [they are] needed to preserve evidence until police could obtain a warrant"). Cf. Missouri v. McNeely,569 U.S. ----, 133 S.Ct. 1552, 1562-1563, 185 L.Ed.2d 696 (2013)(noting that many States have procedures in place for considering warrant applications telephonically). Procedures along these lines are ubiquitous. A 2002 report by the Department of Justice "identified approximately 335 existing administrative subpoena authorities held by various [federal] executive branch entities." Office of Legal Policy, Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities 3, online at http://www. justice.gov/archive/olp/rpt_to_congress.htm (All Internet materials as visited June 19, 2015, and available in Clerk of Court's case file). Their prevalence confirms what common sense alone would otherwise lead us to conclude: In most contexts, business owners can be afforded at least an opportunity to contest an administrative search's propriety without unduly compromising the government's ability to achieve its regulatory aims. Of course administrative subpoenas are only one way in which an opportunity for precompliance review can be made available. But whatever the precise form, the availability of precompliance review alters the dynamic between the officer and the hotel to be searched, and reduces the risk that officers will use these administrative searches as a pretext to harass business owners. Finally, we underscore the narrow nature of our holding. Respondents have not challenged and nothing in our opinion calls into question those parts of § 41.49 that require hotel operators to maintain guest registries containing certain information. And, even absent legislative action to create a procedure along the lines discussed above, see supra,at 2452 - 2453, police will not be prevented from obtaining access to these documents. As they often do, hotel operators remain free to consent to searches of their registries and police can compel them to turn them over if they have a proper administrative warrant-including one that was issued ex parte-or if some other exception to the warrant requirement applies, including exigent circumstances. B Rather than arguing that § 41.49(3)(a) is constitutional under the general administrative search doctrine, the City and Justice SCALIA contend that hotels are "closely regulated," and that the ordinance is facially valid under the more relaxed standard that applies to searches of this category of businesses. Brief for Petitioner 28-47; post, at 2459. They are wrong on both counts. Over the past 45 years, the Court has identified only four industries that "have such a history of government oversight that no reasonable expectation of privacy... could exist for a proprietor over the stock of such an enterprise," Barlow's, Inc.,436 U.S., at 313, 98 S.Ct. 1816. Simply listing these industries refutes petitioner's argument that hotels should be counted among them. Unlike liquor sales, Colonnade Catering Corp. v. United States,397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), firearms dealing, United States v. Biswell,406 U.S. 311, 311-312, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), mining, Donovan v. Dewey,452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981), or running an automobile junkyard, New York v. Burger,482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare. See, e.g., id.,at 709, 107 S.Ct. 2636("Automobile junkyards and vehicle dismantlers provide the major market for stolen vehicles and vehicle parts"); Dewey,452 U.S., at 602, 101 S.Ct. 2534(describing the mining industry as "among the most hazardous in the country"). Moreover, "[t]he clear import of our cases is that the closely regulated industry... is the exception." Barlow's, Inc.,436 U.S., at 313, 98 S.Ct. 1816. To classify hotels as pervasively regulated would permit what has always been a narrow exception to swallow the rule. The City wisely refrains from arguing that § 41.49 itself renders hotels closely regulated. Nor do any of the other regulations on which petitioner and Justice SCALIA rely-regulations requiring hotels to, inter alia,maintain a license, collect taxes, conspicuously post their rates, and meet certain sanitary standards-establish a comprehensive scheme of regulation that distinguishes hotels from numerous other businesses. See Brief for Petitioner 33-34 (citing regulations); post,at 2460 (same). All businesses in Los Angeles need a license to operate. LAMC §§ 21.03(a), 21.09(a). While some regulations apply to a smaller set of businesses, see e.g. Cal.Code Regs., tit. 25, § 40 (2015)(requiring linens to be changed between rental guests), online at http://www.oal.ca.gov/ccr.htm, these can hardly be said to have created a " 'comprehensive' " scheme that puts hotel owners on notice that their " 'property will be subject to periodic inspections undertaken for specific purposes,' " Burger,482 U.S., at 705, n. 16, 107 S.Ct. 2636(quoting Dewey,452 U.S., at 600, 101 S.Ct. 2534). Instead, they are more akin to the widely applicable minimum wage and maximum hour rules that the Court rejected as a basis for deeming "the entirety of American interstate commerce" to be closely regulated in Barlow's, Inc.436 U.S., at 314, 98 S.Ct. 1816. If such general regulations were sufficient to invoke the closely regulated industry exception, it would be hard to imagine a type of business that would not qualify. See Brief for Google Inc. as Amicus Curiae16-17; Brief for the Chamber of Commerce of United States of America as Amicus Curiae12-13. Petitioner attempts to recast this hodgepodge of regulations as a comprehensive scheme by referring to a "centuries-old tradition" of warrantless searches of hotels. Brief for Petitioner 34-36. History is relevant when determining whether an industry is closely regulated. See, e.g.,Burger,482 U.S., at 707, 107 S.Ct. 2636. The historical record here, however, is not as clear as petitioner suggests. The City and Justice SCALIA principally point to evidence that hotels were treated as public accommodations. Brief for Petitioner 34-36; post,at 2459 - 2460, and n. 1. For instance, the Commonwealth of Massachusetts required innkeepers to " 'furnish[ ]... suitable provisions and lodging, for the refreshment and entertainment of strangers and travellers, pasturing and stable room, hay and provender... for their horses and cattle.' " Brief for Petitioner 35 (quoting An Act For The Due Regulation Of Licensed Houses (1786), reprinted in Acts and Laws of the Commonwealth of Massachusetts 209 (1893)). But laws obligating inns to provide suitable lodging to all paying guests are not the same as laws subjecting inns to warrantless searches. Petitioner also asserts that "[f]or a long time, [hotel] owners left their registers open to widespread inspection." Brief for Petitioner 51. Setting aside that modern hotel registries contain sensitive information, such as driver's licenses and credit card numbers for which there is no historic analog, the fact that some hotels chose to make registries accessible to the public has little bearing on whether government authorities could have viewed these documents on demand without a hotel's consent. Even if we were to find that hotels are pervasively regulated, § 41.49 would need to satisfy three additional criteria to be reasonable under the Fourth Amendment: (1) "[T]here must be a'substantial' government interest that informs the regulatory scheme pursuant to which the inspection is made"; (2) "the warrantless inspections must be 'necessary' to further [the] regulatory scheme"; and (3) "the statute's inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant." Burger,482 U.S., at 702-703, 107 S.Ct. 2636(internal quotation marks omitted). We assume petitioner's interest in ensuring that hotels maintain accurate and complete registries might fulfill the first of these requirements, but conclude that § 41.49 fails the second and third prongs of this test. The City claims that affording hotel operators any opportunity for precompliance review would fatally undermine the scheme's efficacy by giving operators a chance to falsify their records. Brief for Petitioner 41-42. The Court has previously rejected this exact argument, which could be made regarding any recordkeeping requirement. See Barlow's, Inc., 436 U.S., at 320, 98 S.Ct. 1816("[It is not] apparent why the advantages of surprise would be lost if, after being refused entry, procedures were available for the [Labor] Secretary to seek an ex partewarrant to reappear at the premises without further notice to the establishment being inspected"); cf. Lone Steer,464 U.S., at 411, 415, 104 S.Ct. 769(affirming use of administrative subpoena which provided an opportunity for precompliance review as a means for obtaining "payroll and sales records"). We see no reason to accept it here. As explained above, nothing in our decision today precludes an officer from conducting a surprise inspection by obtaining an ex partewarrant or, where an officer reasonably suspects the registry would be altered, from guarding the registry pending a hearing on a motion to quash. See Barlow's, Inc.,436 U.S., at 319-321, 98 S.Ct. 1816; Riley,573 U.S., at ----, 134 S.Ct., at 2486. Justice SCALIA's claim that these procedures will prove unworkable given the large number of hotels in Los Angeles is a red herring. See post,at 2462. While there are approximately 2,000 hotels in Los Angeles, ibid., there is no basis to believe that resort to such measures will be needed to conduct spot checks in the vast majority of them. See supra,at 2452 - 2453. Section 41.49 is also constitutionally deficient under the "certainty and regularity" prong of the closely regulated industries test because it fails sufficiently to constrain police officers' discretion as to which hotels to search and under what circumstances. While the Court has upheld inspection schemes of closely regulated industries that called for searches at least four times a year, Dewey,452 U.S., at 604, 101 S.Ct. 2534or on a "regular basis," Burger,482 U.S., at 711, 107 S.Ct. 2636§ 41.49 imposes no comparable standard. * * * For the foregoing reasons, we agree with the Ninth Circuit that § 41.49(3)(a) is facially invalid insofar as it fails to provide any opportunity for precompliance review before a hotel must give its guest registry to the police for inspection. Accordingly, the judgment of the Ninth Circuit is affirmed. It is so ordered. Justice SCALIA, with whom THE CHIEF JUSTICE and Justice THOMAS join, dissenting. The city of Los Angeles, like many jurisdictions across the country, has a law that requires motels, hotels, and other places of overnight accommodation (hereinafter motels) to keep a register containing specified information about their guests. Los Angeles Municipal Code (LAMC) § 41.49(2) (2015). The purpose of this recordkeeping requirement is to deter criminal conduct, on the theory that criminals will be unwilling to carry on illicit activities in motel rooms if they must provide identifying information at check-in. Because this deterrent effect will only be accomplished if motels actually do require guests to provide the required information, the ordinance also authorizes police to conduct random spot checks of motels' guest registers to ensure that they are properly maintained. § 41.49(3). The ordinance limits these spot checks to the four corners of the register, and does not authorize police to enter any nonpublic area of the motel. To the extent possible, police must conduct these spot checks at times that will minimize any disruption to a motel's business. The parties do not dispute Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Douglas delivered the opinion of the Court. This case is here on a petition for a writ of certiorari which we granted because of the seeming misapplication by the court below of Jesionowski v. Boston & Maine R. Co., 329 U. S. 452. Petitioner was a seaman on S. S. Mission Soledad, a steam tanker owned and operated by the United States. He was on the main deck rounding in two blocks, an operation which followed the cradling of the boom. One block was attached to the outer end of the boom by a wire rope. The other block was being held by a shipmate, one Dudder, who stood above petitioner on the meccano deck, a structure of beams which had been erected on the main deck. Petitioner was taking in the slack by pulling on the free end of the rope which ran through the two blocks. As he pulled on the rope the two blocks were brought together. When that was done Dudder had to walk forward with the block he held at a rate of speed controlled by petitioner. The operation went forward smoothly. Petitioner would pull on the rope, Dudder would walk forward, and then petitioner would stop to coil the accumulated free line. Petitioner and Dudder had worked harmoniously, neither one jerking on the line nor interfering with the other’s function. There was no fouling of the lines; the rope was taut and ran free. We have only a partial account of how the injury to petitioner occurred. Dudder was not called. The only testimony we have is from petitioner and his version of the episode is uncontradicted. The block which it was Dudder’s duty to hold (and which weighed 25 or 30 pounds) was permitted to fall; it hit petitioner on the head and caused the injury for which this libel in personam, (see 41 Stat. 525, 46 U. S. C. § 742) was filed under the Jones Act, 38 Stat. 1185, as amended, 41 Stat. 1007, 46 U. S. C. § 688. Dudder, as we have said, was standing above petitioner. It is not certain why the block fell. Petitioner was hit without warning. When hit, he was bending over coiling the line on the deck. The rule of res ipsa loquitur applied in Jesionowski v. Boston & Maine R. Co., supra, means that “the facts of the occurrence warrant the inference of negligence, not that they compel such an inference.” Sweeney v. Erving, 228 U. S. 233, 240. We need not determine what the result would be if it were shown that petitioner was pulling on the rope when the accident happened. For the uncontradicted evidence is that he was not pulling on the rope but was bending over coiling it on the deck. A man who is careful does not ordinarily drop a block on a man working below him. Some external force might conceivably compel him to do so. But where, as here, the injured person is not implicated (Jesionowski v. Boston & Maine R. Co., supra), the falling of the block is alone sufficient basis for an inference that the man who held the block was negligent. In short, Dudder alone remains implicated, since on the record either he or petitioner was the cause of the accident and it appears that petitioner was not responsible. The Jones Act makes applicable to these suits the standard of liability of the Federal Employers’ Liability Act, 35 Stat. 65, as amended, 53 Stat. 1404,45 U. S. C. § 51. Thus the shipowner becomes liable for injuries to a seaman resulting in whole or in part from the negligence of another employee. See De Zon v. American President Lines, 318 U. S. 660, 665. And there is no reason in logic or experience why res ipsa loquitur is not applicable to acts of a fellow servant. See Lejeune v. General Petroleum Corp., 128 Cal. App. 404, 18 P. 2d 429; Johnson v. Metropolitan Street R. Co., 104 Mo. App. 588, 592-593, 78 S. W. 275, 276. True, the doctrine finds most frequent application in cases of injuries arising from instruments or properties under the employer’s exclusive control. San Juan Light & Transit Co. v. Requena, 224 U. S. 89; Jesionowski v. Boston & Maine R. Co., supra; Lukon v. Pennsylvania R. Co., 131 F. 2d 327; Sweeting v. Pennsylvania R. Co., 142 F. 2d 611. Inherent, however, in the negligence inferred in that type of case is an act or failure to act by an individual. While the acts of negligence underlying such accidents may reach higher into the management hierarchy than the one involved here, the Federal Employers’ Liability Act compels us to go no higher than a fellow servant. See Terminal R. Assn. v. Staengel, 122 F. 2d 271. No act need be explicable only in terms of negligence in order for the rule of res ipsa loquitur to be invoked. The rule deals only with permissible inferences from unexplained events. In this case the District Court found negligence from Dudder’s act of dropping the block since all that petitioner was doing at the time was coiling the rope. The Circuit Court of Appeals reversed, 160 F. 2d 789, feeling that petitioner might have pulled the block out of Dudder’s hands. It reasoned that, although petitioner testified he was bending over coiling the rope when the block hit him, the concussion may have caused a lapse of memory which antedated the actual injury. The inquiry, however, is not as to possible causes of the accident but whether a showing that petitioner was without fault and was injured by the dropping of the block is the basis of a fair inference that the man who dropped the block was negligent. We think it is, for human experience tells us that careful men do not customarily do such an act. Petitioner presses here his claim for maintenance and cure which was rejected by both courts below. He was hospitalized by respondent for a number of weeks following the accident. He was then found unfit for sea duty and doctors of the Public Health Service recommended that he enter various government hospitals. He refused and went instead to live on the ranch of his parents. We need not decide whether an agreement between petitioner and the government doctors for out-patient treatment and rest at his home might be inferred. Cf. Rey v. Colonial Navigation Co., 116 F. 2d 580; Moyle v. National Petroleum Transport Corp., 150 F. 2d 840. For there is ample evidence to support the findings of the two lower courts that petitioner had incurred no expense or liability for his care and support at the home of his parents. See Field v. Waterman S. S. Corp., 104 F. 2d 849. On that issue we affirm the Circuit Court of Appeals. On the issue of negligence we reverse it. So ordered. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice O’Connor delivered the opinion of the Court. This ease presents the question whether, in an 1894 statute that ratified an agreement for the sale of surplus tribal lands, Congress diminished the boundaries of the Yankton Sioux Reservation in South Dakota. The reservation was established pursuant to an 1858 Treaty between the United States and the Yankton Sioux Tribe. Subsequently, under the Indian General Allotment Act, Act of Feb. 8, 1887, 24 Stat. 388, 25 U. S. C. §381 (Dawes Act), individual members of the Tribe received allotments of reservation land, and the Government then negotiated with the Tribe for the cession of the remaining, unallotted lands. The issue we confront illustrates the jurisdictional quandaries wrought by the allotment policy: We must decide whether a landfill constructed on non-Indian fee land that falls within the boundaries of the original Yankton Reservation remains subject to federal environmental regulations. If the divestiture of Indian property in 1894 effected a diminishment of Indian territory, then the ceded lands no longer constitute “Indian country” as defined by 18 U. S. C. § 1151(a), and the State now has primary jurisdiction over them. In light of the operative language of the 1894 Act, and the circumstances surrounding its passage, we hold that Congress intended to diminish the Yankton Reservation and consequently that the waste site is not in Indian country. I A' At the outset of the 19th century, the Yankton Sioux Tribe held exclusive dominion over 13 million acres of land between the Des Moines and Missouri Rivers, near the boundary that currently divides North and South Dakota. H. Hoover, The Yankton Sioux 25 (1988). In 1858, the Yanktons entered into a treaty with the United States renouncing their claim to more than 11 million acres of their aboriginal lands in the north-central plains. Treaty of Apr. 19, 1858, 11 Stat. 743. Pursuant to the agreement, the Tribe ceded “all the lands now owned, possessed, or claimed by them, wherever situated, except four hundred thousand acres thereof, situated and described as follows, to wit — Beginning at the mouth of the Naw-izi-wa-koo-pah or Chouteau River and extending up the Missouri River thirty miles; thence due north to a point; thence easterly to a point on the said Chouteau River; thence down said river to the place of beginning, so as to include the said quantity of four hundred thousand acres.” Art. I, id., at 744. The retained portion of the Tribe’s lands, located in what is now the southeastern part of Charles Mix County, South Dakota, was later surveyed and determined to encompass 430,405 acres. See Letter from the Commissioner of Indian Affairs to the Secretary of the Interior (Dec. 9, 1893), reprinted in S. Exec. Doc. No. 27, 53d Cong., 2d Sess., 5 (1894) (hereinafter Letter). In consideration for the cession of lands and release of claims, the United States pledged to protect the Yankton Tribe in their “quiet and peaceable possession” of this reservation and agreed that “[n]o white person,” with narrow exceptions, would “be permitted to reside or make any settlement upon any part of the [reservation].” Arts. IV, X, 11 Stat. 744, 747. The Federal Government further promised to pay the Tribe, or expend for the benefit of members of the Tribe, $1.6 million over a 50-year period, and appropriated an additional $50,000 to aid the Tribe in its transition to the reservation through the purchase of livestock and agricultural implements, and the construction of houses, schools, and other buildings. Not all of this assistance was forthcoming, and the Tribe experienced severe financial difficulties in the years that followed, compounded by weather cycles of drought and devastating floods. When war broke out between the United States and the Sioux Nation in 1862, the Yankton Tribe alone sided with the Federal Government, a decision that isolated it from the rest of the Sioux Federation and caused severe inner turmoil as well. The Tribe’s difficulties coincided with a period of rapid growth in the United States’ population, increasing westward migration, and ensuing demands from non-Indians to open Indian holdings throughout the Western States to settlement. In response to these “familiar forces,” DeCoteau v. District County Court for Tenth Judicial Dist., 420 U. S. 425, 431 (1975), Congress retreated from the reservation concept and began to dismantle the territories that it had previously set aside as permanent and exclusive homes for Indian tribes. See Solem v. Bartlett, 465 U. S. 468, 466 (1984). The pressure from westward-bound homesteaders, and the belief that the Indians would benefit from private property ownership, prompted passage of the Dawes Act in 1887, 24 Stat. 388. The Dawes Act permitted the Federal Government to allot traets of tribal land to individual Indians and, with tribal consent, to open the remaining holdings to non-Indian settlement. Within a generation or two, it was thought, the tribes would dissolve, their reservations would disappear, and individual Indians would be absorbed into the larger community of white settlers. See Hearings on H. R. 7902 before the House Committee on Indian Affairs, 73d Cong., 2d Sess., 428 (1934) (statement of D. S. Otis on the histoiy of the allotment policy). With respect to the Yankton Reservation in particular, some Members of Congress speculated that “close contact with the frugal, moral, and industrious people who will settle [on the reservation] [would] stimulate individual effort and make [the Tribe’s] progress much more rapid than heretofore.” Report of the Senate Committee on Indian Affairs, S. Rep. No. 196, 53d Cong., 2d Sess., 1 (1894). In accordance with the Dawes Act, each member of the Yankton Tribe received a 160-acre tract from the existing reservation, held in trust by the United States for 25 years. Members of the Tribe acquired parcels of land throughout the 1858 reservation, although many of the allotments were clustered in the southern part, near the Missouri River. By 1890, the allotting agent had apportioned 167,325 acres of reservation land, 95,000 additional acres were subsequently allotted under the Act of February 28, 1891, 26 Stat. 795, and a small amount of acreage was reserved for government and religious purposes. The surplus amounted to approximately 168,000 acres of unallotted lands. See Letter, at 5. In 1892, the Secretary of the Interior dispatched a three-member Yankton Indian Commission to Greenwood, South Dakota, to negotiate for the acquisition of these surplus lands. See Act of July 13, 1892, 27 Stat. 137 (appropriating fends to enable the Secretary to “negotiate with any Indians for the surrender of portions of their respective reservations”). When the Commissioners arrived on the reservation in October 1892, they informed the Tribe that they had been sent by the “Great Father” to discuss the cession of “this land that [members of the Tribe] hold in common,” Council of the Yankton Indians (Oct. 8, 1892), transcribed in S. Exec. Doe. No. 27, at 48, and they abruptly encountered opposition to the sale from traditionalist tribal leaders. See Report of the Yankton Indian Commission (Mar. 31, 1893), reprinted in S. Exec. Doe. No. 27, at 9-11 (hereinafter Report). In the lengthy negotiations that followed, members of the Tribe raised concerns about the suggested price per acre, the preservation of their annuities under the 1858 Treaty, and other outstanding claims against the United States, but they did not discuss the future boundaries of the reservation. Once the Commissioners garnered a measure of support for the sale of the unallotted lands, they submitted a proposed agreement to the Tribe. Article I of the agreement provided that the Tribe would “cede, sell, relinquish, and convey to the United States” all of the unallotted lands on the reservation. Pursuant to Article II, the United States agreed to compensate the Tribe in a single payment of $600,000, which amounted to $3.60 per acre. Much of the agreement focused on the payment and disposition of that sum. Article YII further provided that all the signatories and adult male members of the Tribe would receive a $20 gold piece to commemorate the agreement. Some members of the Tribe also sought unpaid wages from their service as scouts in the Sioux War, and in Article XV, the United States recognized their claim. The saving clause in Article XVIII, the core of the current disagreement between the parties to this case, stated that nothing in the agreement’s terms “shall be construed to abrogate the treaty [of 1858]” and that “all provisions of the said treaty... shall be in full force and effect, the same as though this agreement had not been made.” By March 1893, the Commissioners had collected signatures from 255 of the 458 male members of the Tribe eligible to vote, and thus obtained the requisite majority endorsement. The Yankton Indian Commission filed its report in May 1893, but congressional consideration was delayed by an investigation into allegations of fraud in the procurement of signatures. On August 15, 1894, Congress finally ratified the 1892 agreement, together with similar surplus land sale agreements between the United States and the Siletz and Nez Perce Tribes. Act of Aug. 15,1894, 28 Stat. 286. The 1894 Act incorporated the 1892 agreement in its entirety and appropriated the necessary funds to compensate the Tribe for the ceded lands, to satisfy the claims for scout pay, and to award the commemorative $20 gold pieces. Congress also prescribed the punishment for violating a liquor prohibition included in the agreement and reserved certain sections in each township for common-school purposes. Ibid. President Cleveland issued a proclamation opening the ceded lands to settlement as of May 21, 1895, and non-Indians rapidly acquired them. By the turn of the century, 90 percent of the unallotted tracts had been settled. See Yankton Sioux Tribe v. United States, 623 P. 2d 159, 171 (Ct. Cl. 1980). A majority of the individual allotments granted to members of the Tribe also were subsequently conveyed in fee by the members to non-Indians. Today, the total Indian holdings in the region consist of approximately 30,000 acres of allotted land and 6,000 acres of tribal land. Indian Reservations: A State and Federal Handbook 260 (1986). Although formally repudiated with the passage of the Indian Reorganization Act in 1934, 48 Stat. 984, 25 U. S. C. §461, the policy favoring assimilation of Indian tribes through the allotment of reservation land left behind a lasting legacy. The conflict between the modern-day approach to tribal self-determination and the assimilation impetus of the allotment era has engendered “a spate of jurisdictional disputes between, state and federal officials as to which sovereign has authority over lands that were opened by the [surplus land] Acts and have since passed out of Indian ownership.” Solem, 465 U. S., at 467. B We confront such a dispute in the instant ease, in which tribal, federal, and state officials disagree as to the environmental regulations applicable to a proposed waste site. In February 1992, several South Dakota counties formed the Southern Missouri Recycling and Waste Management District (hereinafter Waste District) for the purpose of constructing a municipal solid waste disposal facility. The Waste District acquired the site for the landfill, which falls within the 1858 boundaries of the Yankton Sioux Reservation, in fee from a non-Indian. The predicate for the parties’ claims in this case is that the waste site lies on land ceded in the 1894 Act, and the record supports that assumption. In the Tribe’s complaint, the proposed landfill is described as “the south one-half north one-quarter (S1/2 N1/4), Section 6, Township 96 North, Range 65 West (S6, T96N, R65W) of the Fifth Principal Meridan [sic], Charles Mix County, South Dakota.” App. 24. That description corresponds to the account of a tract of land deeded to Lars K. Langeland under the Homestead Act in 1904. See App. to Brief for Respondent Southern Missouri Waste Management District la-2a. Because all of the land allotted to individual Indians on the Yankton Reservation was inalienable, pursuant to the Dawes Act, during a 25-year trust period, the tract acquired by a homesteader in 1904 and currently owned by the Waste District must consist of unallotted land ceded in the 1894 Act. (The Dawes Act was amended in 1906 by the Burke Act, 34 Stat. 182, 25 U. S. C. § 349, which permitted the issuance of some fee-simple patents before the expiration of the 25-year trust period, but the restrictions on alienation remained in place as of 1904.) When the Waste District sought a state permit for the landfill, the Yankton Tribe intervened and objected on environmental grounds, arguing that the proposed compacted clay liner was inadequate to prevent leakage. After an administrative hearing in December 1993, the State Board of Minerals and the Environment granted the solid waste permit, finding that South Dakota regulations did not require the installation of the synthetic composite liner the Tribe had requested. The Sixth Judicial Circuit affirmed the Board’s decision, and no appeal was taken to the State Supreme Court. In September 1994, the Tribe filed suit in the Federal District Court for the District of South Dakota to enjoin construction of the landfill, and the Waste District joined South Dakota as a third party so that the State could defend its jurisdiction to grant the permit. The Tribe also sought a declaratory judgment that the permit did not comport with Federal Environmental Protection Agency (EPA) regulations mandating the installation of a composite liner in the landfill. See 40 CFR § 258.40(b) (1997). The District Court held, in accordance with our decision in South Dakota v. Bourland, 508 U. S. 679, 692 (1993), that the Tribe itself could not assert regulatory jurisdiction over the non-Indian activity on fee lands. Furthermore, because the Tribe did not establish that the landfill would compromise the “political integrity, the economic security, or the health or welfare of the tribe,” the court concluded that the Tribe could not invoke its inherent sovereignty under the exceptions in Montana v. United States, 450 U. S. 544, 566 (1981). Accordingly, the court declined to enjoin the landfill project, a decision the Tribe does not appeal. The District Court also determined, however, that the 1894 Act did not diminish the exterior boundaries of the reservation as delineated in the 1858 Treaty between the United States and the Tribe, and consequently that the waste site lies within an Indian reservation where federal environmental regulations apply. On appeal by the State, a divided panel of the Court of Appeals for the Eighth Circuit agreed that “Congress intended by its 1894 Act that the Yankton Sioux sell their surplus land to the government, but not their governmental authority over it.” 99 F. 3d 1439, 1457 (1996). The court relied primarily on the saving clause in Article XVIII, reasoning that, given its “unusually expansive language,” other sections of the 1894 Act “should be read narrowly to minimize any conflict with the 1858 treaty.” Id., at 1447. The court further concluded that neither the historical evidence nor the demographic development of the area could sustain a finding of diminishment. Id., at 1457. We granted certiorari to resolve a conflict between the decision of the Court of Appeals and a number of decisions of the South Dakota Supreme Court declaring that the reservation has been diminished. 520 U. S. 1263 (1997). We now reverse the Eighth Circuit’s decision and hold that the unal-lotted lands ceded as a result of the 1894 Act did not retain reservation status. H-t H-l ' States acquired primary jurisdiction over unallotted opened lands where “the applicable surplus land Act freed that land of its reservation status and thereby diminished the reservation boundaries.” Solem, 465 U. S., at 467. In contrast, if a surplus land Act “simply offered non-Indians the opportunity to purchase land within established reservation boundaries,” id., at 470, then the entire opened area remained Indian country. Our touchstone to determine whether a given statute diminished or retained reservation boundaries is congressional purpose. See Rosebud Sioux Tribe v. Kneip, 430 U. S. 584, 615 (1977). Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights. See, e. g., Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978). Accordingly, only Congress can alter the terms of an Indian treaty by diminishing a reservation, United States v. Celestine, 215 U. S. 278, 285 (1909), and its intent to do so must be “clear and plain,” United States v. Dion, 476 U. S. 734, 738-739 (1986). Here, we must determine whether Congress intended by the 1894 Act to modify the reservation set aside for the Yankton Tribe in the 1858 Treaty. Our inquiry is informed by the understanding that, at the turn of this century, Congress did not view the distinction between acquiring Indian property and assuming jurisdiction over Indian territory as a critical one, in part because “[t]he notion that reservation status of Indian lands might not be coextensive with tribal ownership was unfamiliar,” Solem, 465 U. S., at 468, and in part because Congress then assumed that the reservation system would fade over time. “Given this expectation, Congress naturally failed to be meticulous in clarifying whether a particular piece of legislation formally sliced a certain parcel of land off one reservation.” Ibid.; see also Hagen v. Utah, 510 U. S. 399, 426 (1994) (Blackmun, J., dissenting) (“As a result of the patina history has placed on the allotment Acts, the Court is presented with questions that their architects could not have foreseen”). Thus, although “[t]he most probative evidence of diminishment is, of course, the statutory language used to open the Indian lands,” we have held that we will also consider “the historical context surrounding the passage of the surplus land Acts,” and, to a lesser extent, the subsequent treatment of the area in question and the pattern of settlement there. Id., at 411. Throughout this inquiry, “we resolve any ambiguities in favor of the Indians, and we will not lightly find diminishment.” Ibid. A . Article I of the 1894 Act provides that the Tribe will “cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation”; pursuant to Article II, the United States pledges a fixed payment of $600,000 in return. This “cession” and “sum certain” language is “precisely suited” to terminating reservation status. See DeCoteau, 420 U. S., at 445. Indeed, we have held that when a surplus land Act contains both explicit language of cession, evidencing “the present and total surrender of all tribal interests,” and a provision for a fixed-sum payment, representing “an unconditional commitment from Congress to compensate the Indian tribe for its opened land,” a “nearly conclusive,” or “almost insurmountable,” presumption of diminishment arises. Solem, supra, at 470; see also Hagen, supra, at 411. The terms of the 1894 Act parallel the language that this Court found terminated the Lake Traverse Indian Reservation in DeCoteau, supra, at 445, and, as in DeCoteau, the 1894 Act ratified a negotiated agreement supported by a majority of the Tribe. Moreover, the Act we construe here more clearly indicates diminishment than did the surplus land Act at issue in Hagen, which we concluded diminished reservation lands even though it provided only that “all the unallotted lands within said reservation shall be restored to the public domain.” See 510 U. S., at 412. The 1894 Act is also readily distinguishable from surplus land Acts that the Court has interpreted as maintaining reservation boundaries. In both Seymour v. Superintendent of Wash. State Penitentiary, 368 U. S. 351, 355 (1962), and Mattz v. Arnett, 412 U. S. 481, 501-502 (1973), we held that Acts declaring surplus land “subject to settlement, entry, and purchase,” without more, did not evince congressional intent to diminish the reservations. Likewise, in Solem, we did not read a phrase authorizing the Secretary of the Interior to “sell and dispose” of surplus lands belonging to the Cheyenne River Sioux as language of cession. See 465 U. S., at 472. In contrast, the 1894 Act at issue here — a negotiated agreement providing for the total surrender of tribal claims in exchange for a fixed payment — bears the hallmarks of congressional intent to diminish a reservation. B The Yankton Tribe and the United States, appearing as amicus for the Tribe, rest their argument against diminishment primarily on the saving clause in Article XVIII of the 1894 Act. The Tribe asserts that because that clause purported to conserve the provisions of the 1858 Treaty, the existing reservation boundaries were maintained. The United States urges a similarly “holistic” construction of the agreement, which would presume that the parties intended to modify the 1858 Treaty only insofar as necessary to open the surplus lands for settlement, without fundamentally altering the treaty’s terms. Such a literal construction of the saving elause, as the South Dakota Supreme Court noted in State v. Greger, 559 N. W. 2d 854, 863 (1997), would “impugn the entire sale.” The unconditional relinquishment of the Tribe’s territory for settlement by non-Indian homesteaders can by no means be reconciled with the central provisions of the 1858 Treaty, which recognized the reservation as the Tribe’s “permanent” home and prohibited white settlement there. See Oregon Dept. of Fish and Wildlife v. Klamath Tribe, 473 U. S. 753, 770 (1985) (discounting a saving clause on the basis of a “glaring inconsistency” between the original treaty and the subsequent agreement). Moreover, the Government’s contention that the Tribe intended to cede some property but maintain the entire reservation as its territory contradicts the common understanding of the time: that tribal ownership was a critical component of reservation status. See Solem, supra, at 468. We “cannot ignore plain language that, viewed in historical context and given a fair appraisal, clearly runs counter to a tribe’s later claims.” Klamath, supra, at 774 (internal quotation marks and citation omitted). Rather than read the saving clause in a manner that eviscerates the agreement in which it appears, we give it a “sensible construction” that avoids this “absurd conclusion.” See United States v. Granderson, 511 U. S. 39, 56 (1994) (internal quotation marks omitted). The most plausible interpretation of Article XVIII revolves around the annuities in the form of cash, guns, ammunition, food, and clothing that the Tribe was to receive in exchange for its aboriginal claims for 50 years after the 1858 Treaty. Along with the proposed sale price, these annuities and other unrealized Yankton claims dominated the 1892 negotiations between the Commissioners and the Tribe. The tribal historian testified, before the District Court, that the loss of their rations would have been “disastrous” to the Tribe, App. 589, and members of the Tribe clearly perceived a threat to the annuities. At a particularly tense point in the negotiations, when the tide seemed to turn in favor of forces opposing the sale, Commissioner John J. Cole warned: “I want you to understand that you are absolutely dependent upon the Great Father to-day for a living. Let the Government send out instructions to your agent to cease to issue these rations, let the Government instruct your agent to cease to issue your clothes.... Let the Government instruct him to cease to issue your supplies, let him take away the money to run your schools with, and I want to know what you would do. Everything you are wearing and eating is gratuity. Take all this away and throw this people wholly upon their own responsibility to take care of themselves, and what would be the result? Not one-fourth of your people could live through the winter, and when the grass grows again it would be nourished by the dust of all the balance of your noble tribe.” Council of the Yankton Indians (Dec. 10, 1892), transcribed in S. Exec. Doc. No. 27, at 74. Given the Tribe’s evident concern with reaffirmance of the Government’s obligations under the 1858 Treaty, and the Commissioners’ tendency to wield the payments as an inducement to sign the agreement, we conclude that the saving clause pertains to the continuance of annuities, not the 1858 borders. The language in Article XVIII specifically ensuring that the ‘Yankton Indians shall continue to receive their annuities under the [1858 Treaty]” underscores the limited purpose and scope of the saving clause. It is true that the Court avoids interpreting statutes in a way that “renders some words altogether redundant.” Gustafson v. Alloyd Co., 513 U. S. 561, 574 (1995). But in light of the fact that the record of the negotiations between the Commissioners and the Yankton Tribe contains no discussion of the preservation of the 1858 boundaries but many references to the Government’s failure to fulfill earlier promises, see, e. g., Council of the Yankton Indians (Dec. 3, 1892), transcribed in S. Exec. Doc. No. 27, at 54-55, it seems most likely that the parties inserted and understood Article XVIII, including both the general statement regarding the force of the 1858 Treaty and the particular provision that payments would continue as specified therein, to assuage the Tribes’ concerns about their past claims and future entitlements. Indeed, apart from the pledge to pay annuities, it is hard to identify any provision in the 1858 Treaty that the Tribe might have sought to preserve, other than those plainly inconsistent with or expressly included in the 1894 Act. The Government points to Article XI of the treaty, in which the Tribe agreed to submit for federal resolution “all matters of dispute and difficulty-between themselves and other Indians," 11 Stat. 747, and urges us to extrapolate from this provision that the Tribe implicitly retained jurisdiction over internal matters, and from there to apply the standard canon of Indian law that “[o]nce powers of tribal self-government or other Indian rights are shown to exist, by treaty or otherwise, later federal action which might arguably abridge thdm is construed narrowly in favor of retaining Indian rights.” F. Cohen, Handbook of Federal Indian Law 224 (1982) (hereinafter Cohen). But the treaty’s reference to tribal authority is indirect, at best, and it does not persuade us to view the saving clause as an agreement to maintain exclusive tribal governance within the original reservation boundaries. The Tribe further contends that because Article XVIII affirms that the 1858 Treaty will govern “the same as though [the 1892 agreement] had not been made,” without reference to consistency between those agreements, it has more force than the standard saving clause. While the language of the saving clause is indeed unusual, we do not think it is meaningfully distinct from the saving clauses that have failed to move this Court to find that.pre-existing treaties remain in effect under comparable circumstances. See, e. g., Klamath, 473 U. S., at 769-770; Montana, 450 U. S., at 548, 558-559; Rosebud, 430 U. S., at 623 (Marshall, J., dissenting). Furthermore, “it is a commonplace of statutoiy construction that the specific” cession and sum certain language in Articles I and II “governs the general” terms of the saving clause. See Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384 (1992). Finally, the Tribe argues that, at a minimum, the saving clause renders the statute equivocal, and that confronted with that ambiguity we must adopt the reading that favors the Tribe. See Carpenter v. Shaw, 280 U. S. 363, 367 (1930). The principle according to which ambiguities are resolved to the benefit of Indian tribes is not, however, “a license to disregard clear expressions of tribal and congressional intent.” DeCoteau, 420 U. S., at 447; see also South Carolina v. Catawba Tribe, Inc., 476 U. S. 498, 506 (1986). In previous decisions, this Court has recognized that the precise cession and sum certain language contained in the 1894 Act plainly indicates diminishment, and a reasonable interpretation of the saving clause does not conflict with a like conclusion in this case. C Both the State and the Tribe seek support for their respective positions in two other provisions of the 1894 Act: a clause reserving sections of each township for schools and a prohibition on liquor within the ceded lands. Upon ratification, Congress added that “the sixteenth and thirty-sixth sections in each Congressional township... shall be reserved for common-school purposes and be subject to the laws of the State of South Dakota.” 28 Stat. 319. This “school sections clause” parallels the enabling Act admitting South Dakota to the Union, which grants the State sections 16 and 36 in every township for the support of common schools, but expressly exempts reservation land “until the reservation shall have been extinguished and such lands restored to... the public domain.” Act of Feb. 22, 1889, 25 Stat. 679. When considering a similar provision included in the Act ceding the Rosebud Sioux Reservation in South Dakota, the Court discerned congressional intent to diminish the reservation, “thereby making the sections available for disposition to the State of South Dakota for ‘school sections.’ ” Rosebud, supra, at 601. The Tribe argues that the clause in the 1894 Act specifying the application of state law would be superfluous if Congress intended to diminish the reservation. As the Court stated in DeCoteau, however, “the natural inference would be that state law is to govern the manner in which the 16th and 36th sections are to be employed ‘for common school purposes,’ ” which “implies nothing about the presence or absence of state civil and criminal jurisdiction over the remainder of the ceded lands.” 420 U. S., at 446, n. 33. Although we agree with the State that the school sections clause reinforces the view that Congress intended to extinguish the reservation status of the unallotted land, a somewhat contradictory provision counsels against finding the reservation terminated. Article VIII of the 1894 Act reserved from sale those surplus lands “as may now be occupied by the United States for agency, schools, and other purposes.” In Solem, the Court noted with respect to virtually identical language that “[i]t is difficult to imagine why Congress would have reserved lands for such purposes if it did not anticipate that the opened area would remain part of the reservation.” 465 U. S., at 474. The State’s position is more persuasively supported by the liquor prohibition included in Article XVII of the agreement. The provision prohibits the sale or offering of “intoxicating liquors” on “any of the lands by this agreement ceded and sold to the United States” or “any other lands within or comprising the reservations of the Yankton Sioux or Dakota Indians as described in the [1858] treaty,” 28 Stat. 318, thus signaling a jurisdictional distinction between reservation and ceded land. The Commissioners’ report recommends that Congress “fix a penalty for the violation of this provision which will make it most effective in preventing the introduction of intoxicants within the limits of the reservation,” Report, at 21, which could be read to suggest that ceded lands remained part of the reservation. We conclude, however, that “the most reasonable inference from the inclusion of this provision is that Congress was aware that the opened, unallotted areas would henceforth not be ‘Indian country.’ ” Rosebud, supra, at 613. By 1892, Congress already had enacted laws prohibiting alcohol on Indian reservations, see Cohen 306-307, and “[w]e assume that Congress is aware of existing law when it passes legislation,” Miles v. Apex Marine Corp., 498 U. S. 19, 32 (1990). Furthermore, the Commissioner of Indian Affairs described the provision as prohibiting “the sale or disposition of intoxicants upon any of the lands now within the Yankton Reservation,” Letter, at 6-7 (emphasis added), indicating that the lands would be severed from the reservation upon ratification of the agreement. In Perrin v. United States, 232 U. S. 478 (1914), we implied that the lands conveyed by the 1894 Act lost their reservation status when we construed Article XVII as applying to “ceded lands formerly included in the Yankton Sioux Indian Reservation.” Id., at 480. We now reaffirm that the terms of the 1894 Act, including both the explicit language of cession and the surrounding provisions, attest to Congress’ intent to diminish the Yankton Reservation. Ill Although we perceive congressional intent to diminish the reservation in the plain statutory language, we also take note of the contemporary historical context, subsequent congressional and administrative references to the reservation, and demographic trends. Even in the absence of a clear expression of congressional purpose in the text of a surplus land Act, unequivocal evidence derived from the surrounding circumstances may support the conclusion that a reservation has been diminished. See Solem, 465 U. S., at 471. In this case, although the context of the Act is not so compelling that, standing alone, it would indicate diminishment, neither does it rebut the “almost insurmountable presumption” that arises from the statute’s plain terms. Id., at 470. A The “manner in which the transaction was negotiated” with the Yankton Tribe and “the tenor of legislative Reports presented to Congress” reveal a contemporaneous understanding that the proposed legislation modified the reservation. Id., at 471. In 1892, when the Commissioner of Indian Affairs appointed the Yankton Commission, he charged its members to “negotiate with the [Tribe] for the cession of their surplus lands” and noted that the funds exchanged for the “relinquishment” of those lands would provide a future income for the Tribe. Instructions to the Yankton Indian Commission (July 27, 1892), reprinted in App. 98-99. The negotiations themselves confirm the understanding that by surrendering its interest in the unallotted lands, the Tribe would alter the reservation’s character. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Reed delivered the opinion of the Court. These cases present another aspect of the perplexing problem of what constitutes the regular rate of pay which the Fair Labor Standards Act requires to be used in computing the proper payment for work in excess of forty hours. The applicable provisions read as follows: “Sec. 7. (a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce— (3) for a workweek longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” The problem posed is the method of computing the regular rate of pay for longshoremen who work in foreign and interstate commérce varying and irregular hours throughout the workweek under a collective bargaining agreement for handling cargo which provides contract straight time hourly rates for work done within a prescribed 44-hour time schedule and contract overtime rates for all work done outside the straight time hours. These two suits were brought as class actions on behalf of all longshoremen employed by two stevedoring companies, Bay Ridge Operating Co., and Huron Stevedoring Corp., to recover unpaid statutory excess compensation in accordance with § 16 (b) of the Fair Labor Standards Act. By stipulation the claims of ten specific longshoremen in each case were severed and the two suits were consolidated for trial, leaving the claims of the other plaintiffs pending on the docket. The claims of the plaintiffs here are for the period October 1, 1943, to September 30,1945. The terms of employment for the respondents, longshoremen working in the Port of New York, were fixed for the period in question by the collective bargaining agreement between the International Longshoremens Association and the New York Shipping Association together with certain steamship and stevedore companies. It was applicable to the two petitioners. The agreement established a “basic working day” of eight hours and a “basic working week,” that is, workweek, of forty-four hours; hourly rates for different types of cargo were specified for work between 8 a. m. and 12 noon and between 1 p. m. and 5 p. m. during five working days of the week, Monday through Friday, and from 8 a. m. to 12 noon on Saturday, and a different schedule of rates for work during all other hours in the workweek. The first schedule was called “straight time” rates, and the second schedule was entitled “overtime” rates. This opinion designates these rates as contract straight time and contract overtime. For four types of cargo the overtime rates were exactly one and a half times the straight time rates; for four other types the overtime rates were slightly less than one and a half times the straight time rates. The contract straight time rates ranged from $1.25 to $2.50 an hour. The contract overtime rates were paid for all work on Sundays and legal holidays. The contract provided for no differential for work in excess of forty hours in a week. Respondents claim that their regular rate of pay under the contract for any workweek, within the meaning of § 7 (a), is the average hourly rate computed by dividing the total number of hours worked in any workweek for any single employer into the total compensation received from that employer during that week; and that in those workweeks in which they worked more than forty hours for any one employer they were entitled by § 7 (a) to statutory excess compensation for all such excess hours computed on the basis of that rate. The petitioners claim that the straight time rates are the regular rates, and that they have, therefore, with minor exceptions not presented by this review, complied with the requirements of § 7 (a). That is, no rates except straight time rates are to be taken into consideration in computing the regular rate. The petitioners contend that the contract overtime rates were intended to cover any earned statutory excess compensation and did cover it because they were substantially in an amount of one and one-half times the straight tinle rates. The District Court held that the contract straight time rates were the regular rates but the Circuit Court of Appeals for the Second Circuit held otherwise. Throughout all these proceedings the petitioners have been represented by the Department of Justice, since the United States under its cost-plus contracts with the petitioners is the real party in interest. Substantially all stevedoring during the war years was performed for the account of the United States. The Solicitor General notes that prior to the decision in the Circuit Court of Appeals, 118 suits had been instituted on behalf of longshoremen, and since that time approximately 100 new complaints have been filed. Contracts of the same general type are said to have been in effect in all our maritime areas. Witnesses testifying before the Wages and Hours Subcommittee of the House Committee on Education and Labor stated that liability of the Government under such suits would be large. The Wage and Hour Administrator has not filed a brief in the proceedings, but the Solicitor General has advised us that the Administrator of the Wage and Hour Division of the Department of Labor “believes that proper consideration was given by the court below to his interpretation of Section 7 of the Fair Labor Standards Act and that the decision below is correct.” The Administrator and the Solicitor of the Department of Labor testified at length before the House committee as to their views on the issues presented by these cases. Amicus briefs have been filed by the International Longshoremens Association, the National Association of Manufacturers, and the Waterfront Employers Association of the Pacific Coast, all urging that the decision below be reversed. In order to fix the legal issues in their factual setting, we summarize the findings of fact made by the District Court which were accepted by the Circuit Court of Appeals and are not challenged here. ■ Most of these findings referred to in this opinion will be found in the Appendix at 162 F. 2d 670. Employment in the longshore industry has always been casual in nature. The amount of work available depends on the number of ships in port and their length of stay and is consequently highly variable and unpredictable, from day to day, week to week, and season to season. Longshoremen are hired for a specific job at the “shape,” which is normally held three times a day at each pier where work is available. The hiring stevedore selects the men he desires from the longshoremen who are present at the “shape”; in some instances a group of longshoremen are hired together as a gang. The work may last only for a few hours or for as long as a week. Although some work is carried on at all hours, the stevedoring companies, since operations are then carried on at less cost, attempt to do as much work as possible during the straight time hours. The court further found that the rate for night work and holiday work had been higher than the rate for day work since at least as far back as 1887, and that since 1916, when the first agreement was made with the International Longshoremens Association, the differential had been approximately 50%. Joseph B. Ryan, President of the Association, testified that the differential was designed to shorten the total number of hours worked and to confine the work as far as possible within the scheduled forty-four hours. Despite the differential, many longshoremen were unwilling to work at night. Although some longshore work was required at all hours, except Saturday night, the District Court found that the differential had been responsible for the high degree of concentration of longshore work to the contract straight time hours. The government introduced elaborate statistical studies to show the distribution of work as between the contract straight time and contract overtime hours. From 1932 to 1937, 80% of the total hours worked were within the contract straight time hours and only 2%% of the total manhours were performed by men working between 5 p. m. and 8 a. m. (exclusive of Sundays and holidays) who had worked no straight time hours earlier that day. During the war, the proportion of work in contract overtime hours was considerably higher because of the greater volume of cargo handled; 55% of the total hours fell within the contract straight time hours, and the ratio of work in contract overtime hours by men who had not previously worked in the contract straight time hours was correspondingly higher. The respondents’ employment was highly irregular; in many weeks the respondents did not work at all, and in weeks in which they did work their hours of employment varied over a wide range. The trial court concluded that the “basic working day” and “basic working week,” meaning by these phrases the contract straight time hours, were not the periods “normally, regularly or usually” worked by the respondents. Finding 45. In giving judgment for the petitioners, the trial court placed emphasis on the fact that the rates in question were arrived at through bona fide collective bargaining, and were more favorable to the longshoremen than the statutory mandate required. That is, that rates as high as contract straight time rates plus statutory excess compensation were paid to all workers for all work in contract overtime hours whether required by § 7 (a) or not. The District Court opinion referred to Joseph B. Ryan’s statement that the International Longshoremens Association was opposed to the suit “as it might wipe out all of the gains we had made for our men over a period of 25 years.” It rejected respondents’ alternative contentions that the regular rate was to be determined by the average rate during the first forty hours or by the average rate for all hours worked. It noted that shift differentials were usually five or ten cents an hour and seldom exceeded fifteen cents and were not designed to deter the employer from working employees during the period for which the differential was paid; in the present case the trial judge found that the 50% differential was designed to deter and actually did deter work outside contract straight time hours. Accordingly the trial court concluded that the “collectively bargained agreement established a regular rate” under the Fair Labor Standards Act — -the contract straight time rate. 69 F. Supp. 956, 961. The Circuit Court of Appeals held that the regular rate must be determined as an “actual fact” and could not be arranged through a collective bargaining agreement, citing 149 Madison Ave. Corp. v. Asselta, 331 U. S. 199. That court therefore concluded that on the basis of the findings below the regular rate must be computed by dividing the total number of hours worked into the total compensation received. The court rejected the contention that the regular rate was the average rate for the first forty hours of work, citing Walling v. Halliburton Oil Well Cementing Co., 331 U. S. 17. The judgment of the District Court was reversed with directions to determine the amounts due plaintiffs in the light of the Portal-to-Portal Act of 1947, 61 Stat. 84. No determination of the scope or validity of that act was attempted as those matters had not been argued. 162 F. 2d 665, 673. On account of the importance of the method of computing the regular rate of pay in employment contracts providing for extra pay, we granted certiorari. 332 U. S. 814. The government adopts the view of the District Court that the contract straight time rates constituted the regular rates within the meaning of § 7 (a) of the Fair Labor Standards Act. The government accepts, too, the reasoning of the District Court that the contract overtime rates, as they were coercive in the sense that they were intended to exert pressure on employers to carry on their activities in the straight time hours, were not regular rates and could be credited against required statutory excess compensation in the amount that the contract overtime rates exceeded the contract straight time rates. The government argues in the alternative that the “normal, non-overtime workweek,” said to be the hours controlling the regular rate of pay, is to be determined by reference to peacetime conditions, rather than the abnormal wartime conditions, and that the statistical studies show that the work of longshoremen is sufficiently concentrated within the scheduled hours to compel the finding that the contract straight time hours are the regular working hours. The government urges also that the contract, as thus interpreted, accords with congressional purposes in enacting the Fair Labor Standards Act. It is said to reduce working hours and spread employment and to preserve the integrity of collective bargaining. We agree with the conclusion reached by the Circuit Court of Appeals. Later in this opinion, pp. 465-471, we set out our reasons for concluding that the extra pay for contract overtime hours is not an overtime premium. Where there are no overtime premium payments the rule for determining the regular rate of pay is to divide the wages actually paid by the hours actually worked in any workweek and adjudge additional payment to each individual on that basis for time in excess of forty hours worked for a single employer. Any statutory excess compensation so found is of course subject to enlargement under the provisions of § 16 (b). Compare § 11 of Portal-to-Portal Act of 1947. This determination, we think, accords with the statute and the terms of the contract. (1) The statute, § 7 (a), expresses the intention of Congress “to require extra pay for overtime work by those covered by the Act even though their hourly wages exceeded the statutory minimum.” The purpose was to compensate those who labored in excess of the statutory maximum number of hours for the wear and tear of extra work and to spread employment through inducing employers to shorten hours because of the pressure of extra cost. The statute by its terms protects the group of employees by protecting each individual employee from overly long hours. So although only one of a thousand works more than forty hours, that one is entitled to statutory excess compensation. That excess compensation is fixed by § 7 (a) “at one and one-half times the regular rate at which he is employed.” The regular rate of pay of the respondents under this contract must therefore be found. The statute contains no definition of regular rate of pay and no rule for its determination. Contracts for pay take many forms. The rate of pay may be by the hour, by piecework, by the week, month or year, and with or without a guarantee that earnings for a period of time shall be at least a stated sum. The regular rate may vary from week to week. Overnight Motor Co. v. Missel, 316 U. S. 572, 580; Walling v. Belo Corp., 316 U. S. 624, 632. The employee’s hours may be regular or irregular. From all such wages the regular hourly rate must be extracted. As no authority was given any agency to establish regulations, courts must apply the statute to this situation without the benefit of binding interpretations within the scope of the Act by an administrative agency. Every contract of employment, written or oral, explicitly or implicitly includes a regular rate of pay for the person employed. Walling v. Belo Corp., supra, 631; Walling v. Halliburton Oil Well Cementing Co., supra. We have said that “the words ‘regular rate’... obviously mean the hourly rate actually paid for the normal, non-overtime workweek.” Walling v. Helmerich & Payne, 323 U. S. 37, 40. See United States v. Rosenwasser, 323 U. S. 360, 363. “Wage divided by hours equals regular rate.” Overnight Motor Co. v. Missel, supra, 580. “The regular rate by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments. It is not an arbitrary label chosen by the parties; it is an actual fact. Once the parties have decided upon the amount of wages and the mode of payment the determination of the regular rate becomes a matter of mathematical computation, the result of which is unaffected by any designation of a contrary ‘regular rate’ in the wage contracts.” Walling v. Youngerman-Reynolds Hardwood Co., 325 U. S. 419, 424-25. The result is an “actual fact.” 149 Madison Ave. Corp. v. Asselta, supra, 204. In dealing with such a complex situation as wages throughout national industry, Congress necessarily had to rely upon judicial or administrative application of its standards in applying sanctions to individual situations. These standards had to be expressed in words of generality. The possible contract variations were unforeseeable. In Walling v. Belo Corp., supra, 634, this Court refrained from rigidly defining “regular rate” in a guaranteed weekly wage contract that met the statutory requirements of § 7 (a) for minimum compensation. In the Belo case the contract called for a regular or basic rate of pay above the statutory minimum and a guaranteed weekly wage of 60 times that amount. As the hourly rate was kept low in relation to the guaranteed wage, statutory overtime plus the contract hourly rate did not amount to the guaranteed weekly wage until after 54% hours were worked. P. 628. We refused to require division of the weekly wage actually paid by the hours actually worked to find the “regular rate” of pay and left its determination to agreement of the parties. Where the same type of guaranteed weekly wages were involved, we have reaffirmed that decision as a narrow precedent principally because of public reliance upon and congressional acceptance of the rule there announced. Walling v. Halliburton Co., supra. Aside from this limitation of Belo, the case itself is not a precedent for these cases as in Belo the statutory requirements of minimum wages and statutory excess compensation were provided by the Belo contract. In these present cases no provision has been made for any statutory excess compensation and none can be earned by any respondent based on the contract overtime pay. Our assent to the Belo decision, moreover, does not imply that mere words in a contract can fix the regular rate. That would not be the maintenance of a flexible definition of regular rate but a refusal to apply a statutory requirement for protecting workers against excessive hours. The results on the individual of the operations under the contract must be tested by the statute. As Congress left the regular rate of pay undefined, we feel sure the purpose was to require judicial determination as to whether in fact an employee receives the full statutory excess compensation, rather than to impose a rule that in the absence of fraud or clear evasion employers and employees might fix a regular rate without regard to hours worked or sums actually received as pay. Further, we reject the argument that under the statute an agreement reached or administered through collective bargaining is more persuasive in defining regular rate than individual contracts. Although our public policy recognizes the effectiveness of collective bargaining and encourages its use, nothing to our knowledge in any act authorizes us to give decisive weight to contract declarations as to the regular rate because they are the result of collective bargaining. 149 Madison Aye. Corp. v. Asselta, supra, 202 and 204; Walling v. Harnischfeger Corp., 325 U. S. 427, 432. A vigorous argument is presented for petitioners by the International Longshoremens Association that a collectively obtained and administered agreement should be effective in determining the regular rate of pay but we think the words of and practices under the contract are the determinative factors in finding the regular rate for each individual. As the regular rate of pay cannot be left to a declaration by the parties as to what is to be treated as the regular rate for an employee, it must be drawn from what happens under the employment contract. We think the most reasonable conclusion is that Congress intended the regular rate of pay to be found by dividing the weekly compensation by the hours worked unless the compensation paid to the employee contains some amount that represents an overtime premium. If such overtime premium is included in the weekly pay check that must be deducted before the division. This deduction of overtime premium from the pay for the workweek results from the language of the statute. When the statute says that the employee shall receive for his excess hours one and one-half times the regular rate at which he is employed, it is clear to us that Congress intended to exclude overtime premium payments from the computation of the regular rate of pay. To permit overtime premium to enter into the computation of the regular rate would be to allow overtime premium on overtime premium — a pyramiding that Congress could not have intended. In order to avoid a similar double payment, we think that any overtime premium paid, even if for work during the first forty hours of the workweek, may be credited against any obligation to pay statutory excess compensation. These conclusions accord with those of the Administrator. The definition of overtime premium thus becomes crucial in determining the regular rate of pay. We need not pause to differentiate the situations that have been described by the word “overtime.” Sometimes it is used to denote work after regular hours, sometimes work after hours fixed by contract at less than the statutory maximum hours and sometimes hours outside of a specified clock pattern without regard to whether previous work has been done, e. g., work on Sundays or holidays. It is not a word of art. See Premium Pay Provisions in Selected Union Agreements, Monthly Labor Review, U. S. Department of Labor, October 1947, Vol. 65, No. 4. Overtime premium has been used in this opinion as defined in note 3. It is that extra pay for work because of previous work for a specified number of hours in the workweek or workday. It is extra pay of that kind which we think that Congress intended should be excluded from computation of regular pay. Otherwise the purpose of the statute to require payment to an employee for excess hours is expanded extravagantly by computing regular rate of pay upon a payment already made for the same purpose for which § 7 (a) requires extra pay, to wit, extra pay because of excess working hours. Accordingly, statutory excess compensation paid for work in excess of forty hours should not be used to figure the regular rate. Neither should similar contract excess compensation for work because of prior work be used in such a calculation. Extra pay by contract because of longer hours than the standard fixed by the contract for the day or week has the same purpose as statutory excess compensation and must likewise be excluded. Under the definition, a mere higher rate paid as a job differential or as a shift differential, or for Sunday or holiday work, is not an overtime premium. It is immaterial in determining the character of the extra pay that an employee actually has worked at a lower rate earlier in the workweek prior to the receipt of the higher rate. The higher rate must be paid because of the hours previously worked for the extra pay to be an overtime premium. The trial court refused to accept the respondents’ contention that the contract overtime rate was a shift differential, partly because it was felt that such a holding would have a disruptive effect on national economy. 69 F. Supp. 958-59. We use as examples three illustrations employed by the District Court to illustrate its understanding of the effect of respondents’ contentions to employment situations. That court thought these illustrations indicated additional liability from the employer under § 7 (a). We do not agree. Our conclusions as to the trial court’s illustrations vary from those of the trial court because that court did not deduct overtime premiums, as we have defined them, actually paid from the weekly wage before dividing by the hours worked. See quotation from Walling v. Youngerman-Reynolds Hardwood Co., supra, at p. 461 of this opinion. (1) The employment contract calls for an overtime premium for work beyond thirty-six hours. Such extra pay should not be included as weekly wages in any computation of the regular rate at which a man works. (2) A contract provides for payment of time and a half for work in excess of eight hours in a single workday. An employee who works five ten-hour days would have no claim for statutory excess compensation if paid the amount due by the contract. Or (3) a contract provides for a rate of $1 an hour for the first 40 hours and $1.50 for all excess hours; an employee works 48 hours and receives $52. To find his regular rate of pay, the overtime premium of $4 should be deducted and the resulting sum divided by 48 hours. On the other hand, a man might be employed as a night watchman on an eight-hour shift at time and a half the wage rate of day watchmen. This would be extra pay for undesirable hours. It is a shift differential. It would not be overtime premium pay but would be included in the computation for determining overtime premium for any excess hours. Where an employee receives a higher wage or rate because of undesirable hours or disagreeable work, such wage represents a shift differential or higher wages because of the character of work done or the time at which he is required to labor rather than an overtime premium. Such payments enter into the determination of the regular rate of pay. See Cabunac v. National Terminals Corp., 139 F. 2d 853. The trial court seemed to assume that if the contract overtime rate were a shift differential, the employee who worked on a higher paid shift would be entitled to have his higher shift rates enter into the computation of regular rate of pay. One of the reasons for not allowing the contract overtime rates in the computation of regular rate of pay was that it thought the great difference between the contract straight time and contract overtime rates showed that the premium paid by contract was not a shift differential but a true overtime premium. In this we think the trial court erred. The size of the shift differential cannot change the fact that large wages were paid for work in undesirable hours. It is like a differential for dangerous work. This contract called for $2.50 straight time hourly rate for handling explosives. The statutory excess compensation would, of course, be $3.75 per hour. If an employee receives from his employer a high hourly rate of pay for hard or disagreeable duty, he is entitled to the statutory excess compensation figured on his actual pay. Nor do we find the District Court’s reliance upon the fact that the overtime rates were employed in order to concentrate the work of the longshoremen in the straight time hours relevant to a determination of the respondents’ rate of pay. The District Court thought the concentration was significant. It did not test whether the contract overtime rates contained overtime premium payments by considering whether the employee actually received extra compensation for excess hours. We accept the District Court’s holding that this concentration was an intended effect of the overtime rates and that the higher rates did contribute to the concentration of the work in the straight time hours as set out in a preceding paragraph of this opinion. P. 456 supra. Such a concentration tends, in some respects, to the employment of more men, as there is pressure for more work to be done in the straight time hours. Overnight Motor Co. v. Missel, supra, 578. However, the pressure of the contract overtime wages is not solely toward a spread of employment. Since work is in fact done outside straight time hours, the employer can use men who have previously worked in straight time hours in contract overtime hours without additional cost. But spread of employment is not the sole purpose of the forty-hour maximum provision of § 7 (a). Its purpose is also to compensate an employee in a specific manner for the strain of working longer than forty hours. Overnight Motor Co. v. Missel, supra, 578. The statute commands that an employee receive time and one-half his regular rate of pay for statutory excess compensation. The contract here in question fails to give that compensation to an employee who works all or part of his time in the less desirable contract overtime hours. Looked at from the individual standpoint of respondents, the concentration of work does not have any effect upon their regular rate of pay. Because of this defect, the concentration of work brought about by the contract has no effect in the determination of the regular rate of pay. As we indicated at the beginning of this subdivision (1), a major purpose of the statute was to compensate an employee by extra pay for work done in excess of the statutory maximum hours. Thus the burdens of overly long hours are balanced by the pay of time and a half for the excess hours. We therefore hold that overtime premium, deductible from extra pay to find the regular rate of pay, is any additional sum received by an employee for work because of previous work for a specified number of hours in the workweek or workday whether the hours are specified by contract or statute. (2) Since under Interpretative Bulletin No. 4, § 69, the Administrator refers to regular working hours as important in calculating the regular rate of pay under § 7 (a) of the Act, a word must be said as to regular working hours in this case. “Regular working hours” apparently has not been defined by the Administrator. He could hardly have intended in § 69 to employ the statutory maximum hours as synonomous with regular working hours as there is no prohibition on regular working hours that are longer than the statutory maximum. His illustrations, numbers 2 and 3, show that overtime premiums may be earned within the first 40 hours of a workweek. The statutory maximum hours are significant only as requiring overtime premium pay. An employer may increase pay or decrease hours free as to those steps from statutory regulation. See article in Monthly Labor Review, supra. The trial court pointed out that “The identifying mark of the case at bar is the absence of any norm, any regularity. Both parties have emphasized the casual, irregular character of the employment.” 69 F. Supp. 959-60. The trial court, as we have heretofore stated, pp. 456-457, also found that the “basic working day,” defined by § 2 (a) of the agreement set forth in note 5, supra, was not the day normally, regularly or usually worked by respondents. Indeed the contract, § 1, required these round-the-clock irregular hours from some individuals. We call attention to the problem only to lay it aside as inapplicable in this case. However, the government contends in this case that regular working hours are important, that the contract fixed regular working hours as the straight time hours and that as an actual fact as shown by the statistics of concentration of work in straight time hours, p. 456, supra, the straight time hours were the regular working hours of all longshoremen. The government concludes from this that the contract straight time pay is the regular rate of pay and the contract overtime pay includes a true overtime premium. We may be mistaken in thus limiting the government’s argument on this point. If the government means that any extra pay to an employee for work outside regular working hours of the group of employees is to be excluded from the computation of the regular rate, we do not think that contention sound. The defect in this argument, however the government’s position is construed, is that it treats of the entire group of longshoremen instead of the individual workmen, respondents here. The straight time hours can be the regular working hours only to those who work in those hours. The work schedule of other individuals in the same general employment is of no importance in determining regular working hours of a single individual. As a matter of fact, regular working hours under a contract, even for an individual, has no significance in determining the rate of pay under the statute. It is not important whether pay is earned for work outside of regular working hours. The time when work is done does not control whether or not all or a part of the pay for that work is to be considered as a part of the regular pay. We think, therefore, that this case presents no problems that involve determination of the regular hours of work. As an employment contract for irregular hours the rule of dividing the weekly wage by the number of hours worked to find the regular rate of pay would apply. Cf. Overnight Motor Co. v. Missel, supra, at 580. (3) The contract was interpreted by the Shipping Association and the Longshoremens Association as providing that the contract straight time was the regular rate. The parties to the contract indicated by their conduct that the contract overtime was the statutory excess compensation or an overtime premium. Finding 43,162 F. 2d at 672; see note 33, m/ra. Apparently no dispute or controversy arose over this interpretation although the contract, § 19, made provision for the resolution of such disagreements. The trial court determined that the straight time hourly rate was the regular rate at which respondents were employed. This construction by the parties and the court’s conclusion, supported by evidence, leads us to consider this agreement as though there was a paragraph which read to the effect that the straight time rate is the regular rate of pay. We should also consider that the contract provided that the contract overtime rates were intended to provide any statutory excess compensation, when men worked more than forty hours except in those situations where the entire time, including the excess, was in the straight time hours. This of course does not mean that respondents here were familiar with these purposes of the agreement. So far as the record shows, they worked for the pay promised under the words of the contract. It shows nothing more on this point. Under the contract we are examining, the respondents’ work in overtime hours was performed without any relation as to whether they had or had not worked before. Under our view of §.7 (a)’s requirements their high pay was not because they had previously worked but because of the disagreeable hours they were called to labor or because the contracting parties wished to compress the regular working days into the straight time hours as much as possible. As heretofore pointed out, we need not determine what were the regular working hours of these respondents. If it were important, the trial court determined that their regular working hours were not the straight time hours. They worked at irregular times. Finding 45, 162 F. 2d at 673. The record shows that all respondents worked 5,201 straight time hours and 20,771 overtime hours. Four of the twenty respondents worked no straight time hours. Five others worked less than 100 straight time hours. Three worked more straight time than overtime. The record does not show the hours these respondents worked for other employers. That fact is immaterial in this case as respondents seek recovery only from petitioner employers. These round-the-clock hours were in strict accordance with the contract which allowed the Longshoremens Association to furnish all men needed and called for the men to “work any night of thé week, or on Sundays, Holidays, or Saturday afternoons, when required.” §§ 1 and 2; see note 5. Men who worked contract overtime hours were entitled to contract overtime pay. They were given no overtime premium pay because of long hours. It is immaterial that his regular rate may greatly exceed the statutory minimum rate. This contract overtime rate, therefore, did not meet the excess pay requirements of § 7. In finding the statutory excess compensation due respondents, the trial court must determine the method of computation. Each respondent is entitled to receive compensation for his hours worked in excess of forty at one and a half times his regular rate, computed as the weighted average of the rates worked during the week. In computing the amount to be paid, the petitioners may credit against the obligation to pay statutory excess compensation the amount already paid to each respondent which is allocable to work in those excess hours. The precise method for computing this credit presents the difficulty. According to the Administrator’s interpretation, an employer may credit himself with an amount equal to the number of hours worked in excess of forty multiplied by the regular rate of pay for the entire week rather than an amount equal to the number of hours worked in excess of forty multiplied by the average rate of pay for those excess hours. Under that formula each respondent is entitled, as statutory excess compensation, to an additional sum equal to the number of hours worked for one employer in a workweek in excess of forty, multiplied by one-half the regular rate of pay. On the record before us, that interpretation seems to be a reasonable one; we leave a final determination of the point to the District Court on further proceedings. The Circuit Court ordered the case remanded to the District Court for determination of the amounts due respondents in accordance with its opinion. By a further order, it allowed the District Court to consider any matters presented to it by petitioners as a defense in whole or in part under the Portal-to-Portal Act. We modify these orders so as to permit the District Court to allow any amendments to the complaint or answer or any further evidence that the District Court may consider just. As so modified the judgment of the Circuit Court of Appeals is affirmed. MR. Justice Douglas took no part in the consideration or Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

G

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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. Upon oral argument, it appeared that in the normal course the fee for petitioner’s United States patent must be paid by May 25, 1959, and that the patent will issue shortly after payment of the fee. . Accordingly, the case is remanded to the District Court and that court is instructed: (1) If'petitioner has by May 25, 1959, paid the patent fee for his patent, and has not requested a suspension or delay in the issuance thereof, or has withdrawn any such request theretofore made, to continue, the case and the restraining orders entered herein by The Chief Justice until the patent issues, and then to dismiss the complaint as moot; (2) otherwise, on May 25, 1959, to, dismiss the complaint on the ground that, apart from the merits of the controversy, the grant of the extraordinary equitable relief of an injunction at that stage of the proceedings would not be warranted. Upon the fulfillment of either of these conditions, the proceedings heretofore had in the two lower courts are vacated. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Reed delivered the opinion of the Court. An indictment was found in the Southern District of Illinois against appellees Green and a local union. The jury adjudged them guilty under counts one and two thereof. The court sustained their separate motions in arrest of judgment, setting out in its order that its action was “solely” on the following grounds: “2. This court is without jurisdiction of the offense. “(b) The facts alleged in the Indictment failed to set forth an offense against the United States such as to give this Court jurisdiction. “(c) A proper construction of the statute in question clearly indicates that it does not cover the type of activity charged in this indictment; to interpret the Act in question as covering the type of activity charged in this Indictment is to extend the jurisdiction of this Court and the power of Congress beyond their Constitutional limits.” Appeal was taken by the United States directly to this Court under 18 U. S. C. § 3731. We noted probable jurisdiction. 350 U. S. 813. The two counts in question were based upon alleged violations of 18 U. S. C. § 1951, popularly known as the Hobbs Act. The pertinent statutory provisions are subsections (a) and (b)(2) thereof, reading as follows: “(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. “(b) • . . “(2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” Each of the two counts charged appellees with acts of extortion under § 1951 directed against a different employer. The extortions alleged consisted of attempts to obtain from the particular employer “his money, in the form of wages to be paid for imposed, unwanted, superfluous and fictitious services of laborers commonly known as swampers, in connection with the operation of machinery and equipment then being used and operated by said [employer] in the execution of his said contract for maintenance work on said levee, the attempted obtaining of said property from said [employer] as aforesaid being then intended to be accomplished and accomplished with the consent of said [employer], induced and obtained by the wrongful use, to wit, the use for the purposes aforesaid, of actual and threatened force, violence and fear made to said [employer], and his employees and agents then and there being; in violation of Section 1951 of Title 18, United States Code.” Appellees each filed motions for acquittal or in the alternative for a new trial. These the trial court specifically denied. The opinion of the trial court, 135 F. Supp. 162, says nothing as to failure of evidence to support the allegations of the indictment, or as to trial errors. Instead the court relied upon the absence of criminality in the acts charged, and it was therefore logical for the trial court to deny acquittal and new trial. The court thought persuasive our recent cases which held union efforts to secure “made work” for their members were not unfair labor practices. From its view that extortion as defined in the Hobbs Act covers only the taking of property from another for the extortioner’s personal advantage, the necessity to arrest the judgment followed. Rule 34, Fed. Rules Crim. Proc. We do not agree with that interpretation of the section. The Hobbs Act was passed after this Court had construed § 2 of the Federal Anti-Racketeering Act of 1934, 48 Stat. 979, in United States v. Local 807, 315 U. S. 521. Subsection (a) of § 2 barred, with respect to interstate commerce, exaction of valuable considerations by force, violence or coercion, “not including, however, the payment of wages by a bona-fide employer to a bona-fide employee.” We held in Local 807 that this exception covered members of a city truck drivers’ union offering superfluous services to drive arriving trucks to their city destination with intent, if the truck owners refused their offer, to exact the wages by violence. In the Hobbs Act, 60 Stat. 420, carried forward as 18 U. S. C. § 1951, which amended the Anti-Racketeering Act, the exclusion clause involved in the Local 807 decision was dropped. The legislative history makes clear that the new Act was meant to eliminate any grounds for future judicial conclusions that Congress did not intend to cover the employer-employee relationship. The words were defined to avoid any misunderstanding. Title II of the Hobbs Act provides that the provisions of the Act shall not affect the Clayton Act, §§ 6 and 20, 38 Stat. 731, 738; the Norris-LaGuardia Act, 47 Stat. 70; the Railway Labor Act, 44 Stat. 577; or the National Labor Relations Act, 49 Stat. 449. There is nothing in any of those Acts, however, that indicates any protection for unions or their officials in attempts to get personal property through threats of force or violence. Those are not legitimate means for improving labor conditions. If the trial court intended by its references to the Norris-LaGuardia and Wagner Acts to indicate any such labor exception, which we doubt, it was in error. Apparently what the court meant is more clearly expressed by its statement, set out in the last paragraph of note 2 above, that the charged acts would be criminal only if they were used to obtain property for the personal benefit of the union or its agent, in this case Green. This latter holding is also erroneous. The city truckers in the Local 807 case similarly were trying by force to get jobs and pay from the out-of-state truckers by threats and violence. The Hobbs Act was meant to stop just such conduct. And extortion as defined in the statute in no way depends upon having a direct benefit conferred on the person who obtains the property. It is also stated in the opinion below that to interpret the Act as covering the activity charged would “extend the jurisdiction of the Court, and the power of Congress beyond their Constitutional limits.” 135 F. Supp., at 162. The same language is in the order. Since in our view the legislation is directed at the protection of interstate commerce against injury from extortion, the court’s holding is clearly wrong. We said in the Local 807 case that racketeering affecting, interstate commerce was within federal legislative control. 315 U. S., at 536. Cf. Cleveland v. United States, 329 U. S. 14, 19; Mitchell v. Vollmer & Co., 349 U. S. 427. On this appeal the record does not contain the evidence upon which the court acted. The indictment charges interference with commerce by extortion in the words of the Act’s definition of that crime. We rule only on the allegations of the indictment and hold that the acts charged against appellees fall within the terms of the Act. The order in arrest of judgment is reversed and the cause remanded to the District Court. It is so ordered. “An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances: “From a decision arresting a judgment of conviction for insufficiency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded.” . The opinion states: “It is now contended that the Indictment does not state a cause of action within the meaning of the above section. In the usual extortion case, the extorter is obtaining money or property of another for his own benefit. ... In the case at hand, I conclude that Green’s original activity in 'attempting to obtain from Arthur W. Terry, Jr., his money in the form of wages to be paid for imposed, unwanted, superfluous and fictitious services of laborers’ which said charge was seriously controverted, was of itself not a violation of this statute, and within his rights and responsibilities as a Union representative, which was not prohibited by this statute. “. . .1 conclude that the trouble in this Community and on this particular job was caused by a disagreement between the contractor and labor, and was in no wise an attempt to extort for the use of either the Union or the Defendant Green, any money or property of the contractor.” 135 F. Supp., at 163, 164. See American Newspaper Publishers Association v. Labor Board, 345 U. S. 100; Labor Board v. Gamble Enterprises, 345 U. S. 117. The exception was held also to permeate the entire Act. P. 527, n. 2. Beginning soon after our decision in the Local 807 case, a series of bills was introduced in Congress looking toward an amendment to the Anti-Racketeering Act of 1934. S. 2347, 77th Cong., 2d Sess.; H. R. 6872, 77th Cong., 2d Sess.; H. R. 7067, 77th Cong., 2d Sess.; H. R. 653, 78th Cong., 1st Sess.; H. R. 32, 79th Cong., 1st Sess. The last of these bills, H. R. 32, supra, was enacted and became the Hobbs Act, 62 Stat. 793. The House Committee on the Judiciary, in its report on H. R. 32, stated: “It is not the intention of the committee that title III [enacted as title II] be interpreted as authorizing any unlawful acts, particularly those amounting to robbery or extortion. The need for the legislation was emphasized by the opinion of the Supreme Court in the ease of United States v. Local 807 (315 U. S. 521).” H. R. Rep. No. 238, 79th Cong., 1st Sess., p. 10. See also S. Rep. No. 1516, 79th Cong., 2d Sess. Each of the prior bills had the same purpose — amending the Anti-Racketeering Act so as to change the terms which brought about the result reached in the Local 807 case. See H. R. Rep. No. 2176, 77th Cong., 2d Sess.; H. R. Rep. No. 66, 78th Cong., 1st Sess. And see 91 Cong. Rec. 11842, 11843, 11909, 11911, 11919, 11920. The Hobbs Act was enacted prior to the Labor Management Relations Act of 1947. Cf. United States v. Ryan, 350 U. S. 299; United Construction Workers v. Laburnum Corp., 347 U. S. 656; Allen-Bradley Local v. Wisconsin Board, 315 U. S. 740; Labor Board v. Fansteel Corp., 306 U. S. 240; United States v. Kemble, 198 F. 2d 889. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice O’Connor delivered the opinion of the Court. The question presented in this litigation is whether an air carrier’s declared liability limit of $9.07 per pound of cargo is inconsistent with the “Warsaw Convention” (Convention), an international air carriage treaty that the United States has ratified. As a threshold matter we must determine whether the 1978 repeal of legislation setting an “official” price of gold in the United States renders the Convention’s gold-based liability limit unenforceable in this country. We conclude that the 1978 legislation was not intended to affect the enforceability of the Convention in the United States, and that a $9.07-per-pound liability limit is not inconsistent with the Convention. I In 1974 the Civil Aeronautics Board (CAB) informed international air carriers doing business in the United States that the minimum acceptable carrier liability limit for lost cargo would thenceforth be $9.07 per pound. Trans World Airlines, Inc. (TWA), has complied with the CAB order since that time. On March 23, 1979, Franklin Mint Corp. (Franklin Mint) delivered four packages of numismatic materials with a total weight of 714 pounds to TWA for transportation from Philadelphia to London. Franklin Mint made no special declaration of value at the time of delivery. The packages were subsequently lost. Franklin Mint brought suit in United States District Court to recover damages in the amount of $250,000. The parties stipulated that TWA was responsible for the loss of the packages. The only dispute concerns the extent of TWA’s liability. The District Court ruled that under the Convention TWA’s liability was limited to $6,475.98, a figure derived from the weight of the packages, the liability limit set out in the Convention, and the last official price of gold in the United States. The Court of Appeals for the Second Circuit affirmed the judgment, but “rul[ed]” that 60 days from the issuance of the mandate the Convention’s liability limit would be unenforceable in the United States. 690 F. 2d 303 (1982). In a petition for certiorari to this Court TWA challenged the Court of Appeals’ declaration that the Convention’s liability limit is prospectively unenforceable. In a cross-petition, Franklin Mint contended that the Court of Appeals’ actual holding should have been retrospective as well. We granted both petitions, 462 U. S. 1118 (1983). We now conclude that the Convention’s cargo liability limit remains enforceable in United States courts and that the CAB-sanctioned $9.07-per-pound liability limit is not inconsistent with the Convention. Accordingly, we affirm the judgment of the Court of Appeals but reject its declaration that the Convention is prospectively unenforceable. II The Convention was drafted at international conferences in Paris in 1925, and in Warsaw in 1929. The United States became a signatory in 1934. More than 120 nations now adhere to it. The Convention creates internationally uniform rules governing the air carriage of passengers, baggage, and cargo. Under Article 18 carriers are presumptively liable for the loss of cargo. Article 22 sets a limit on carrier liability: “(2) In the transportation of checked baggage and of goods, the liability of the carrier shall be limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires.... “(4) The sums mentioned above shall be deemed to refer to the French franc consisting of 65% milligrams of gold at the standard of fineness of nine hundred thousandths. These sums may be converted into any national currency in round figures. ” Reprinted (in English translation) in note following 49 U. S. C. § 1502. In the United States the task of converting the Convention’s liability limit into “any national currency” falls within rulemaking authority which was, for many years including those at issue here, delegated to the CAB under the Federal Aviation Act of 1958 (FAA), 49 U. S. C. § 1301 et seq. International air carriers are required to file tariffs with the CAB specifying “in terms of lawful money of the United States” the rates and conditions of their services, including the cargo liability limit that they claim. The Act forbids any carrier to charge a “greater or less or different compensation for air transportation, or for any service in connection therewith, than the rates, fares, and charges specified in then currently effective tariffs...,” The CAB, for its part, is empowered to reject any tariff that is inconsistent with the FAA or CAB regulations. 49 U. S. C. § 1373(a). CAB powers are to be exercised “consistently with any obligation assumed by the United States in any treaty, convention, or agreement that may be in force between the United States and any foreign country or foreign countries....” 49 U. S. C. § 1502. During the first 44 years of the United States’ adherence to the Convention there existed an “official” price of gold in the United States, and the CAB’s task of supervising carrier compliance with the Convention’s liability limit was correspondingly simple. The United States Gold Standard Act of 1900 set the value of the dollar at $20.67 per troy ounce of gold. On January 31, 1934, nine months before the United States ratified the Convention, President Roosevelt increased the official domestic price of gold to $35 per ounce. In 1945 the United States accepted membership in the International Monetary Fund (IMF) and so undertook to maintain a “par value” for the dollar and to buy and sell gold at the official price in exchange for balances of dollars officially held by other IMF nations. For almost 40 years the $35-per-ounce price of gold was used to derive from the Convention’s Article 22(2) a cargo liability limit of $7.50 per pound. See, e. g., 14 CFR §221.176 (1972). When the central banks of most Western nations instituted a “two-tier” gold standard in 1968 the gold-based international monetary system began to collapse. Thereafter, official gold transactions were conducted at the official price, and private transactions at the floating, free market price. App. 21. In August 1971 the United States suspended convertibility of foreign official holdings of dollars into gold. In December 1971 and then again in February 1973 the official exchange rate of the dollar against gold was increased. These changes were approved by Congress in the Par Value Modification Act, passed in early 1972 (increasing the official price to $38 per ounce) and in its 1973 reenactment (setting a $42.22-per-ounce price). Each time, the CAB followed suit by directing carriers to increase the dollar-based liability limits in their tariffs accordingly, first to $8.16 per pound, then to $9.07 per pound. In 1975 the member nations of the IMF formulated a plan, known as the Jamaica Accords, to eliminate gold as the basis of the international monetary system. Effective April 1, 1978, the “Special Drawing Right” (SDR) was to become the sole reserve asset that IMF nations would use in their mutual dealings. The SDR was defined as the average value of a defined basket of IMF member currencies. In 1976 Congress passed legislation to implement the new IMF agreement, repealing the Par Value Modification Act effective April 1, 1978. As these developments unfolded, the Convention signatories met in Montreal in September 1975. In No. 4 of the “Montreal Protocols,” the delegates proposed to substitute 17 SDR’s per kilogram for the 250 French gold francs per kilogram in Article 22 of the Convention. Although the United States supported this change, and signed Protocol No. 4, the Senate has not yet consented to its ratification. The erosion and final demise of the gold standard, coupled with the United States’ failure to ratify Montreal Protocol No. 4, left the CAB with the difficult task of supervising carrier compliance with the Convention’s liability limits without up-to-date guidance from Congress. Although the market price of gold began to diverge from the official price in 1969, the CAB continued to track the official price in Orders converting the Convention’s liability limit into dollars. Under CAB Order 74-1-16, promulgated in 1974, “the minimum acceptable figur[e] in United States dollars for liability limits applicable to ‘international transportation’ and ‘international carriage’... [is $] 9.07 [per pound of cargo].” Since 1978 the CAB has actively reviewed this $9.07-per-pound liability limit. As of 1979, however, the CAB continued to sanction the use of the last official price of gold— $42.22 per ounce — as a conversion factor. A CAB Order published on August 14, 1978, restated the CAB’s position. The $9.07-per-pound limit remained codified in CAB regulations, see 14 CFR §221.176 (1979), and CAB Order 74-1-16 was still in force. TWA, like other international carriers, remained subject to Order 74-1-16. HH H-H » — I The most important issue raised by the parties is whether the 1978 repeal of the Par Value Modification Act rendered the Convention’s cargo liability limit unenforceable in the United States. The Court of Appeals so declared, reasoning that (i) enforcement of the Convention requires a factor for converting the liability limit into dollars and (ii) there is no United States legislation specifying a factor to be used by United States courts. We do not accept this analysis. There is, first, a firm and obviously sound canon of construction against finding implicit repeal of a treaty in ambiguous congressional action. “A treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed.” Cook v. United States, 288 U. S. 102, 120 (1933). See also Washington v. Washington Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 690 (1979); Menominee Tribe of Indians v. United States, 391 U. S. 404, 412-413 (1968); Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U. S. 138, 160 (1934). Legislative silence is not sufficient to abrogate a treaty. Weinberger v. Rossi, 456 U. S. 25, 32 (1982). Neither the legislative histories of the Par Value Modification Acts, the history of the repealing Act, nor the repealing Act itself, make any reference to the Convention. The repeal was unrelated to the Convention; it was intended to give formal effect to a new international monetary system that had in fact evolved almost a decade earlier. Second, the Convention is a self-executing treaty. Though the Convention permits individual signatories to convert liability limits into national currencies by legislation or otherwise, no domestic legislation is required to give the Convention the force of law in the United States. The repeal of a purely domestic piece of legislation should accordingly not be read as an implicit abrogation of any part of it. See generally Bacardi Corp. of America v. Domenech, 311 U. S. 150, 161-163 (1940). Third, Article 39 of the Convention requires a signatory that wishes to withdraw from the Convention to provide other signatories with six months’ notice, formally communicated through the Government of Poland. The repeal of the Par Value Modification Act had a sufficient lead time, but Congress and the Executive Branch took no steps to notify other signatories that the United States planned to abrogate the Convention. To the contrary, the Executive Branch continues to maintain that the Convention’s liability limit remains enforceable in the United States. Brief for United States as Amicus Curiae. In these circumstances we are unwilling to impute to the political branches an intent to abrogate a treaty without following appropriate procedures set out in the Convention itself. See The Federalist No. 64, pp. 436-487 (J. Cooke ed. 1961) (J. Jay). Franklin Mint suggests that a treaty ceases to be binding when there has been a substantial change in conditions since its promulgation. A treaty is in the nature of a contract between nations. The doctrine of rebus sic stantibus does recognize that a nation that is party to a treaty might conceivably invoke changed circumstances as an excuse for terminating its obligations under the treaty. But when the parties to a treaty continue to assert its vitality a private person who finds the continued existence of the treaty inconvenient may not invoke the doctrine on their behalf. For these reasons the erosion of the international gold standard and the 1978 repeal of the Par Value Modification Act cannot be construed as terminating or repudiating the United States’ duty to abide by the Convention’s cargo liability limit. We conclude that the limit remains enforceable in United States courts. > HH The Court of Appeals correctly recognized that the Convention’s liability limit must be converted into dollars. This requirement derives not from the Convention itself — the Convention merely permits such a conversion — but from the tariff requirements of § 403(a) of the FAA. 49 U. S. C. § 1373(a). In 1979, when Franklin Mint’s cargo was lost, TWA’s tariffs set the carrier’s cargo liability limit at $9.07 per pound. This tariff had been filed with and accepted by the CAB pursuant to § 403(a), and was squarely consistent with CAB Order 74-1-16. The $9.07-per-pound limit thus represented an Executive Branch determination, made pursuant to properly delegated authority, of the appropriate rate for converting the Convention’s liability limits into United States dollars. We are bound to uphold that determination unless we find it to be contrary to law established by domestic legislation or by the Convention itself. It is clear, first, that the CAB’s choice of a cargo liability limit of $9.07 per pound does not contravene any domestic legislation. When an official price of gold was set by statute the CAB did, of course, use that price to translate the Convention’s gold-based liability limit into dollars. But when Congress repealed the Par Value Modification Act it did not suggest that the CAB should thereafter use a different conversion factor. Indeed, there is no hint that either of the political branches expected or intended that Act to affect the dollar equivalent of the Convention’s liability limit. "Whether the CAB’s choice of a $9.07-per-pound limit is compatible with the Convention itself is more debatable. The Convention included liability limits, and expressed them in terms of gold, to effect several different and to some extent contradictory purposes. Our task of construing those purposes is, however, made considerably easier by the 50 years of consistent international and domestic practices under the Convention. For the reasons stated below we conclude that tying the Convention’s liability limit to today’s gold market would fail to effect any purpose of the Convention’s framers, and would be inconsistent with well-established international practice, acquiesced in by the Convention’s signatories over the past 50 years. A fixed $9.07-per~pound liability limit therefore represents a choice by the CAB sufficiently consistent with the Convention’s purposes. The Convention’s first and most obvious purpose was to set some limit on a carrier’s liability for lost cargo. Any conversion factor will have this effect; in this regard a $9.07-per-pound liability limit is as reasonable as one based on SDR’s or the free market price of gold. The Convention’s second objective was to set a stable, predictable, and internationally uniform limit that would encourage the growth of a fledgling industry. To this end the Convention’s framers chose an international, not a parochial, standard, free from the control of any one country. The CAB’s choice of a $9.07-per-pound liability limit is certainly a stable and predictable one on which carriers can rely. We recognize however that, in the long term, effectuation of the Convention’s objective of international uniformity might require periodic adjustment by the CAB of the dollar-based limit to account both for the dollar’s changing value relative to other Western currencies and, if necessary, for changes in the conversion rates adopted by other Convention signatories. Since 1978, however, no substantial changes of either type have occurred. Despite the demise of the gold standard, the $9.07-per-pound liability limit retained since 1978 has represented a reasonably stable figure when converted into other Western currencies. This is easily established by reference to the SDR, which is the new, nonparochial, internationally recognized standard of conversion. On March 31, 1978, for example, one SDR was worth $1.23667; on March 23, 1979, $1.28626. At all times since 1978 a carrier that chose to set its liability limit at 17 SDR’s per kilogram as suggested by Montreal Protocol No. 4 would have arrived at a liability limit in dollars close to $9 per pound. The CAB’s $9.07-per-pound liability limit also appears to have been a reasonable interim choice for keeping the Convention’s liability limit as enforced in the United States in line with limits enforced by other signatories. As of December 31,1975, 15 nations had signed Montreal Protocol No. 4, suggesting their intent to set a liability limit of 17 SDR’s per kilogram; other nations have chosen to continue using the last official price of gold for converting the Convention’s cargo liability limit into national currencies. Insofar as has been possible in the unsettled circumstances since 1975, the CAB’s choice of a $9.07-per-pound limit has thus furthered the Convention’s intent to set an internationally uniform liability limit. We recognize that this inquiry into the dollar’s value relative to other currencies would have been unnecessary if the CAB had chosen to adopt the market price of gold for converting the Convention’s liability limits into dollars. Since gold is freely traded on an international market its price always provides a unique and internationally uniform conversion rate. But reliance on the gold market would entirely fail to provide a stable unit of conversion on which carriers could rely. To pick one extreme example, between January and April 1980 gold ranged from about $490 to $850 per ounce. App. 24. Far from providing predictability and stability, tying the Convention to the gold market would force every carrier and every air transport user to become a speculator in gold, exposed to the sudden and unpredictable swings in the price of that commodity. The CAB has correctly recognized that this is not at all what the Convention’s framers had in mind. The 1978 decision by many of the Convention’s signatories to exit from the gold market cannot sensibly be construed as a decision to compel every air carrier and air transport user to enter it. A third purpose of the Convention’s gold-based limit may have been to link the Convention to a constant value, that would keep step with the average value of cargo carried and so remain equitable for carriers and transport users alike. We recognize that in an inflationary economy a fixed, dollar-based liability limit may fail in the long term to achieve that purpose. Nonetheless, for the reasons that follow, we cannot fault the CAB’s decision to adhere, in the six years since 1978, to a constant $9.07-per-pound liability limit. The Convention’s framers viewed the treaty as one “drawn for a few years,” not for “one or two centuries.” That it has in fact been adhered to for over half a century is a tribute not only to the framers’ skills but to the signatories’ manifest willingness to accept a flexible implementation of the Convention’s terms. The indisputable fact is that between 1934 and 1978 the signatories, by common if unwritten consent, allowed the value of the liability limit as measured by the free market price of both gold and other commodities to decline substantially, even while the official price of gold was formally maintained. We may not ignore the actual, reasonably harmonious practice adopted by the United States and other signatories in the first 40 years of the Convention’s existence. See Factor v. Laubenheimer, 290 U. S. 276, 294-295 (1933); Day v. Trans World Airlines, Inc., 528 F. 2d 31, 35-36 (CA2 1975), cert. denied, 429 U. S. 890 (1976); Restatement (Second) of Foreign Relations Law of the United States § 147(1)(f) (1965); 2 C. Hyde, International Law 72 (1922). In determining whether the Executive Branch’s domestic implementation of the Convention is consistent with the Convention’s terms, our task is to construe a “contract” among nations. The conduct of the contracting parties in implementing that contract in the first 50 years of its operation cannot be ignored. As of March 31, 1978, $9.07 per pound of cargo therefore represented a “correct” conversion of the Convention’s liability limit into dollars. Though the purchasing power of the dollar has declined somewhat since then, the $9.07-per-pound liability limit, viewed in light of international practice, cannot be declared inconsistent with the purposes of the Convention and the shared understanding of its signatories. Moreover, tying the Convention’s liability limit to the free market price of gold would no longer serve to maintain a constant value of carriers' liability. Since 1978 gold has been only “a volatile commodity, not related to a price index, or to the rate of inflation, or indeed to any meaningful economic measure....” A liability limit tied to the gold market might be convenient for a dispatcher of gold bullion, but such a limit would simply force other air transport users and carriers to become unwilling speculators in the gold market. Whatever other purposes they may have had, the Convention’s framers and signatories did not intend to adopt or agree to a liability limit that is fluid, uncertain, and altogether inconvenient. The Convention was intended to reduce, not to increase, the economic uncertainties of air transportation. V The political branches, which hold the authority to repudiate the Warsaw Convention, have given no indication that they wish to do so. Accordingly, the Convention’s cargo liability limit remains enforceable in the United States. Article 22(4) of the Convention permits conversion of the liability limit into “any national currency.” In the United States the authority to make that conversion has been delegated by Congress to the Executive Branch. The courts are bound to respect that arrangement unless the properly delegated authority is exercised in a manner inconsistent with domestic or international law. We conclude that the CAB’s decision to continue using a $42.22 per ounce of gold conversion rate after the repeal of the Par Value Modification Act was consistent with domestic law and with the Convention itself, construed in light of its purposes, the understanding of its signatories, and its international implementation since 1929. We reject the Court of Appeals’ declaration that the Convention is prospectively unenforceable; the judgment of the Court of Appeals affirming the judgment of the District Court is Affirmed. Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T. S. No. 876 (1934), reprinted in note following 49 U. S. C. § 1502. Had such a declaration been made, and an additional fee paid, Franklin Mint would have been able to recover in an amount not exceeding the declared value. See Convention, Art. 22(2), note following 49 U. S. C. § 1502. With respect to foreign air transportation FAA powers are now exercised by the Department of Transportation in consultation with the Department of State. 49 U. S. C. §§ 1551(b)(1)(B) and (b)(2). For simplicity this opinion will continue to refer only to the CAB. See 49 U. S. C. § 1373(a); cf. 14 CFR §§ 221.38(a)(2), 221.38(j) (1983). 49 U. S. C. § 1373(b)(1). CAB regulations require each carrier to notify air transport users of liability limits. “The notice shall be clearly and conspicuously included on or attached to all of [the carrier’s] rate sheets and airwaybills.” 14 CFR § 205.8 (1983). See Ch. 41, § 1, 31 Stat. 45 (exchange rate stated in terms of grains of gold per dollar). Presidential Proclamation No. 2072, 48 Stat. 1730, pursuant to the Gold Reserve Act of 1934, 48 Stat. 337. The domestic enabling legislation was the Bretton Woods Agreements Act, 59 Stat. 512. See Articles of Agreement of the International Monetary Fund, 60 Stat. 1401, 2 U. N. T. S. 39, T. I. A. S. No. 1501 (1945). Par Value Modification Act, Pub. L. 92-268, §2, 86 Stat. 116. Par Value Modification Act, Pub. L. 93-110, § 1, 87 Stat. 352. CAB Order 72-6-7, 37 Fed. Reg. 11384 (1973), implemented (for checked passenger baggage) in 14 CFR §221.176 (1973). CAB Order 74-1-16, App. 54, 39 Fed. Reg. 1526 (1974), implemented (for checked passenger baggage) in 14 CFR §221.176 (1975). Second Amendment of Articles of Agreement of the International Monetary Fund, Apr. 30, 1976, [1976-1977] 29 U. S. T. 2203, T. I. A. S. No. 8937. The SDR was originally created by the IMF nations in 1969. It was then valued at one thirty-fifth of an ounce of gold, or one 1969 dollar. See First Amendment of the Articles of Agreement of the International Monetary Fund, May 31, 1968, [1969] 20 U. S. T. 2775, T. I. A. S. No. 6748. However there is no longer any fixed correspondence between the SDR and gold; the SDR is defined as a specified basket of Western currencies. Bretton Woods Agreements Act of 1976, Pub. L. 94-564, § 6, 90 Stat. 2660. Montreal Protocol No. 4, done Sept. 25, 1975, reprinted in A. Lowen-feld, Aviation Law, Documents Supplement 991, 996 (2d ed. 1981). Convention signatories who do not belong to the IMF determine for themselves how the liability limit will be converted into their national currencies. Ibid. See Lowenfeld, supra, §6.51, at 7-171. On November 17, 1981, the Senate Committee on Foreign Relations reported in favor of consenting to ratification. But on March 8,1983, by a vote of 50 to 42 in favor of ratification, the Senate failed to reach the two-thirds majority required for consent. The matter remains on the Senate calendar. See S. Exec. Rep. No. 97-45 (1981); 129 Cong. Rec. S2270, S2279 (daily ed. Mar. 8, 1983); S. Exec. Rep. No. 98-1 (1983). App. 56-57; 39 Fed. Reg. 1526 (1974). TWA is included in the Order’s appendix that lists the carriers at which the Order is directed. Id., at 1527. Three internal agency memoranda have addressed the problem. J. Golden, Director, Bureau of Compliance and Consumer Protection, CAB, Memorandum (May 20, 1981), App. 33 (urging retention of the $42.22 conversion rate until the CAB and the Departments of Transportation and State have agreed on a new rate); P. Kennedy, Chief, Policy Development Division, Bureau of Consumer Protection, CAB, Memorandum (Mar. 18, 1980), id., at 42 (urging adoption of the free market price of gold as the conversion factor); J. Gaynes, Attorney, Legal Division, Bureau of International Aviation, CAB, Memorandum (Apr. 18,1980), id., at 60 (opposing the Kennedy memorandum recommendation). CAB Order 78-8-10, 43 Fed. Reg. 35971, 35972 (1978) (liability limit of $20 per kilogram). Note following 49 U. S. C. §1502. The United States has, in fact, followed this procedure once before. On November 15, 1965, the United States delivered a formal notice of denunciation of the Convention to the Polish Peoples Republic. See Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497, 546-552 (1967). The notice was later withdrawn. See Restatement (Second) of Foreign Relations Law of the United States § 153, and Comment c (1965). However, Article 39(2) of the Convention expressly permits a Convention signatory to withdraw by giving timely notice. Plainly, a party to a treaty of voluntary adhesion can have no need for the doctrine of rebus sic stantibus, except insofar as it might wish to avoid the notice requirement. In this connection the Court of Appeals stated: “[In repealing the Par Value Modification Act] Congress thus abandoned the unit of conversion specified by the Convention and did not substitute a new one. Substitution of a new term is a political question, unfit for judicial resolution. We hold, therefore, that the Convention’s limits on liability for loss of cargo are unenforceable in United States Courts.” 690 F. 2d 303, 311 (CA2 1982) (footnote omitted). In our view Congress has not abandoned any “unit of conversion specified by the Convention” — the Convention specifies liability limits in terms of gold francs and provides no unit of conversion whatsoever. To the contrary, the Convention invites signatories to make the conversion into national currencies for themselves. In the United States the CAB has been delegated the power to make the conversion, and has exercised the power most recently in Order 74-1-16. We are not called upon to “[s]ubstitut[e] a new term,” but merely to determine whether the CAB’s Order is inconsistent with the Convention. That determination does not engage the “political question” doctrine. The dissent apparently has no difficulty accepting that while Congress selected the conversion rate between gold and the dollar “[o]ur practice was consistent with the Convention,” see post, at 277, n. 6, even though the conversion rate selected bore no relation whatsoever to the dollar price of gold on the free market, see nn. 35, 37, infra. The dissent does not explain why the CAB, whose powers are exercised pursuant to express congressional delegation, was disqualified from setting a similar conversion rate one year after Congress stopped doing so. Article 22(4) of the Convention expressly permits each signatory nation to convert the Convention’s liability limits into any national currency, but provides no conversion rates for doing so. In this country, 49 U. S. C. § 1373(a) requires such a conversion into dollars. The CAB has been delegated authority under which it may determine the appropriate conversion rate, and it has exercised that authority. Thus, for the extremely narrow purpose of converting the Convention’s liability limits into dollars Congress has indeed “delegated its authority over the currency to the CAB.” See post, at 278, n. 6. We may overrule the CAB’s action only if we conclude that it is inconsistent with the purposes of the Convention or with domestic law. See generally Heller, The Value of the Gold Franc — A Different Point of View, 6 J. Mar. L. & Com. 73, 94-95 (1974); Asser, Golden Limitations of Liability in International Transport Conventions and the Currency Crisis, 5 J. Mar. L. & Com. 645, 664 (1974); Lowenfeld & Mendelsohn, supra n. 22, at 499; H. Drion, Limitation of Liabilities in International Air Law 183 (1954); Excerpt From Warsaw Convention Conference Minutes, October 4-12, 1929, reprinted at App. 161-164. See IMF Survey 125 (Apr. 17, 1978); IMF Survey 114 (Apr. 9, 1979). See S. Exec. Rep. No. 98-1, p. 42 (1983); IMF, International Financial Statistics, Yearbook 521 (1983). The CAB has in fact accepted airline tariffs in which liability limits are based on SDR’s instead of the fixed $9.07 figure. See, e. g., Passenger Rules, Tariff No. PR-3 (CAB No. 55), Rule 25(D)(l)(a)(ii) (Mar. 30,1983); CAB Order 81-3-143 (Application of British Caledonian Airways Limited (Mar. 24, 1981). FitzGerald, The Four Montreal Protocols to Amend the Warsaw Convention Regime Governing International Carriage by Air, 42 J. Air Law & Comm. 273, 277, n. 12 (1976). SDR’s have been adopted as the basis for converting the Convention limits into national currencies in Canada (Currency and Exchange Act: Carriage By Air Act Gold Franc Conversion Regulations, Jan. 13, 1983, 117 Can. Gaz., pt. II, No. 2, at 431 (Jan. 26, 1983)) (reprinted in App. to Brief for Petitioner TWA, at BA36); Italy (Law No. 84, Mar. 26, 1983, 90 Gaz. Uff. (Apr. 1,1983)) (English translation at App. to Brief for Petitioner TWA, at BA37); the Republic of South Africa (Carriage by Air Act, No. 17 of 1946, as amended by No. 5 of 1964 and No. 81 of 1979, Stat. Rep. S. Afi*. (Issue No. 13) 15, implemented by Dept. of Transport Notice R2031 (Sept. 14, 1979)) (reprinted in App. to Brief for Petitioner TWA, at BA39); Sweden (Carrier by Air Act (1957:297), ch. 9, § 22 (as amended Mar. 30, 1978)) (reprinted at App. 67); and Great Britain (Stat. Inst. 1980, No. 281) (reprinted at App. 70). In other countries the courts have taken the initiative in adopting the SDR as the new unit of conversion. See, e. g., Kislinger v. Austrian Airtransport, No. 1 R 145/83 (Commercial Court of Appeals of Vienna, Austria, June 21,1983) (English translation in App. to Brief for Petitioner TWA, at BA12); Rendezvous-Boutique-Parfumerie Friedrich and Albine Breitinger GmbH v. Austrian Airlines, No. 14 R 11/83 (Court of Appeals Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Beeyer delivered the opinion of the Court. The Social Security Disability Insurance (SSDI) program provides benefits to a person with a disability so severe that she is “unable to do [her] previous work” and “cannot . . . engage in any other kind of substantial gainful work which exists in the national economy.” § 223(a) of the Social Security Act, as set forth in 42 U. S. C. § 423(d)(2)(A). This case asks whether the law erects a special presumption that would significantly inhibit an SSDI recipient from simultaneously pursuing an action for disability discrimination under the Americans with Disabilities Act of 1990 (ADA), claiming that “with . . . reasonable accommodation” she could “perform the essential functions” of her job. § 101, 104 Stat. 331, 42 U.S.C. §12111(8). We believe that, in context, these two seemingly divergent statutory contentions are often consistent, each with the other. Thus pursuit, and receipt, of SSDI benefits does not automatically estop the recipient from pursuing an ADA claim. Nor does the law erect a strong presumption against the recipient’s success under the ADA. Nonetheless, an ADA plaintiff cannot simply ignore her SSDI contention that she was too disabled to work. To survive a defendant’s motion for summary judgment, she must explain why that SSDI contention is consistent with her ADA claim that she could “perform the essential functions” of her previous job, at least with “reasonable accommodation.” i — L After suffering a disabling stroke and losing her job, Carolyn Cleveland sought and obtained SSDI benefits from the Social Security Administration (SSA). She has also brought this ADA suit in which she claims that her former employer, Policy Management Systems Corporation, discriminated against her on account of her disability. The two claims developed in the following way: August 1993: Cleveland began work at Policy Management Systems. Her job required her to perform background cheeks on prospective employees of Policy Management System’s clients. January 7, 199A: damaged her concentration, memory, and language skills. January 28,1994: Cleveland filed an SSDI which she stated that she was “disabled” and “unable to work.” App. 21. April 11, 1994,: she returned to work with Policy Management Systems. She reported that fact to the SSA two weeks later. July 11, 1994: Noting work, the SSA denied her SSDI application. July 15, 1994: Policy Management Cleveland. September 14,1994: Cleveland asked the SSA to reconsider its July 11th SSDI denial. In doing so, she said: “I was terminated [by Policy Management Systems] due to my condition and I have not been able to work since. I continue to be disabled.” Id., at 46. She later added that she had “attempted to return to work in mid April,” that she had “worked for three months,” and that Policy Management Systems terminated her because she “could no longer do the job” in light of her “condition.” Id., at 47. November 1991: The SSA denied Cleveland’s request for reconsideration. Cleveland sought an SSA hearing, reiterating that “I am unable to work due to my disability,” and presenting new evidence about the extent of her injuries. Id., at 79. September 29,1995: The SSA awarded Cleveland SSDI benefits retroactive to the day of her stroke, January 7,1994. 22, 1995, the week before her SSDI award, Cleveland brought this ADA lawsuit. . She contended that Policy Management Systems had “terminat[ed]” her employment without reasonably “aecommodat[ing] her disability.” Id., at 7. She alleged that she requested, but was denied, accommodations such as training and additional time to complete her work. Id., at 96. And she submitted a supporting affidavit from her treating physician. Id., at 101. The District Court did not evaluate her reasonable accommodation claim on the merits, but granted summary judgment to the defendant because, in that court’s view, Cleveland, by applying for and receiving SSDI benefits, had conceded that she was totally disabled. And that fact, the court concluded, now estopped Cleveland from proving an essential element of her ADA claim, namely, that she could “perform the essential functions” of her job, at least with “reasonable accommodation.” 42 U.S.C. §12111(8). The Fifth Circuit affirmed the District Court’s grant of summary judgment. 120 F. 3d 513 (1997). The court wrote: “[T]he application for or the receipt of social security disability benefits creates a rebuttable presumption that the claimant or recipient of such benefits is judicially estopped from asserting that he is a ‘qualified individual with a disability.’ ” Id., at 518. The Circuit Court noted that it was “at least theoretically conceivable that under some limited and highly unusual set of circumstances the two claims would not necessarily be mutually exclusive.” Id., at 517. But it concluded that, because “Cleveland consistently represented to the SSA that she was totally disabled, she has failed to raise a genuine issue of material fact rebutting the presumption that she is judicially estopped from now asserting that for the time in question she was nevertheless a ‘qualified individual with a disability’ for purposes of her ADA claim.” Id., at 518-519. We granted certiorari in light of disagreement among the Circuits about the legal effect upon an ADA suit of the application for, or receipt of, disability benefits. Compare, e. g., Rascon v. U S West Communications, Inc., 143 F. 3d 1324, 1332 (CA10 1998) (application for, and receipt of, SSDI benefits is relevant to, but does not estop plaintiff from bringing, an ADA claim); Griffith v. Wal-Mart Stores, Inc., 135 F. 3d 376, 882 (CA6 1998) (same), cert. pending, No. 97-1991; Swanks v. Washington Metropolitan Area Transit Authority, 116 F. 3d 582, 586 (CADC 1997) (same), with McNemar v. Disney Store, Inc., 91 F. 3d 610, 618-620 (CA3 1996) (applying judicial estoppel to bar plaintiff who applied for disability benefits from bringing suit under the ADA), cert. denied, 519 U. S. 1115 (1997), and Kennedy v. Applause, Inc., 90 F. 3d 1477, 1481-1482 (CA9 1996) (declining to apply judi-eial estoppel but holding that claimant who declared total disability in a benefits application failed to raise a genuine issue of material fact as to whether she was a qualified individual with a disability). II The Social Security Act and the ADA both help individuals with disabilities, but in different ways. The Social Security Act provides monetary benefits to every insured individual who “is under a disability.” 42 U. S. C. § 428(a)(1). The Act defines “disability” as an “inability to engage in any substantial gainful activity by reason of any . . . physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” § 423(d)(1)(A). The individual’s impairment, as we have said, supra, at 797, must be “of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....” §423(d)(2)(A). The ADA seeks to eliminate unwarranted discrimination against disabled individuals in order both to guarantee those individuals equal opportunity and to provide the Nation with the benefit of their consequently increased productivity. See, e. g., 42 U. S. C. §§ 12101(a)(8), (9). The ADA prohibits covered employers from discriminating “against a qualified individual with a disability because of the disability of such individual.” § 12112(a). The ADA defines a “qualified individual with a disability” as a disabled person “who . . . can perform the essential functions” of her job, including those who can do so only “with . . . reasonable accommodation.” §12111(8). We here consider but one of the many ways in which these two statutes might interact. This ease does not involve, for example, the interaction of either of the statutes before us with other statutes, such as the Federal Employers’ Liability Act, 45 U. S. C. § 51 et seq. Nor does it involve directly conflicting statements about purely factual matters, such as “The light was red/green,” or “I can/cannot raise my arm above my head.” An SSA representation of total disability differs from a purely factual statement in that it often implies a context-related legal conclusion, namely, “I am disabled for purposes of the Social Security Act.” And our consideration of this latter kind of statement consequently leaves the law related to the former, purely factual, kind of conflict where we found it. The case before us concerns an ADA applied for, and received, SSDI benefits. It requires us to review a Court of Appeals decision upholding the grant of summary judgment on the ground that an ADA plaintiff’s “representation] to the SSA that she was totally disabled” created a “rebuttable presumption” sufficient to “judicially esto[p]” her later representation that, “for the time in question,” with reasonable accommodation, she could perform the essential functions of her job. 120 F. 3d, at 518-519. The Court of Appeals thought, in essence, that claims under both Acts would incorporate two directly conflicting propositions, namely, “I am too disabled to work” and “I am not too disabled to work.” And in an effort to prevent two claims that would embody that kind of factual conflict, the court used a special judicial presumption, which it believed would ordinarily prevent a plaintiff like Cleveland from successfully asserting an ADA claim. In our view, that arises from the language of the two statutes, the two claims do not inherently conflict to the point where courts should apply a special negative presumption like the one applied by the Court of Appeals here. That is because there are too many situations in which an SSDI claim and an ADA claim can comfortably exist side by side. we noted, the ADA defines a “qualified individual” to include a disabled person “who . . . can perform the essential functions” of her job “with reasonable accommodation.” Reasonable accommodations may include: “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations.” 42 U.S.C. § 12111(9)(B). By way of contrast, when the SSA determines whether an individual is disabled for SSDI purposes, it does not take the possibility of “reasonable accommodation” into account, nor need an applicant refer to the possibility of reasonable accommodation when she applies for SSDI. See Memorandum from Daniel L. Skoler, Associate Comm’r for Hearings and Appeals, SSA, to Administrative Appeals Judges, reprinted in 2 Social Security Practice Guide, App. § 15C[9], pp. 15-401 to 15-402 (1998). The omission reflects the facts that the SSA receives more than 2.5 million claims for disability benefits each year; its administrative resources are limited; the matter of “reasonable accommodation” may turn on highly disputed workplace-specific matters; and an SSA misjudgment about that detailed, and often fact-specific matter would deprive a seriously disabled person of the critical financial support the statute seeks to provide. See Brief for United States et al. as Amici Curiae 10-11, and n. 2, 13. The result is that an ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that the plaintiff could not perform her own job (or other jobs) without it. For another thing, in order to process the large number of SSDI claims, the SSA administers SSDI with the help of a five-step procedure that embodies a set of presumptions about disabilities, job availability, and their interrelation. The SSA asks: Step One: Are you presently working? (If so, you are ineligible.) See 20 CFR § 404.1520(b) (1998). Step Two: Do you have a one that “significantly limits” your ability to do basic work activities? (If not, you are ineligible.) See § 404.1520(c). Step Three: Does your impairment or an impairment on a specific (and fairly lengthy) SSA list? (If so, you are eligible without more.) See §§ 404.1520(d), 404.1525, 404.1526. Step Four: If your impairment does not meet or a listed impairment, can you perform your “past relevant work?” (If so, you are ineligible.) See § 404.1520(e). Step Five: If your impairment does not meet or equal a listed impairment and you cannot perform your “past relevant work,” then can you perform other jobs that exist in significant numbers in the national economy? (If not, you are eligible.) See §§ 404.1520(f), 404.1560(e). The presumptions embodied in these questions — particularly those necessary to produce Step Three’s list, which, the Government tells us, accounts for approximately 60 percent of all awards, see Tr. of Oral Arg. 20 — grow out of the need to administer a large benefits system efficiently. But they inevitably simplify, eliminating consideration of many differences potentially relevant to an individual’s ability to perform a particular job. Hence, an individual might qualify for SSDI under the SSA’s administrative rules and yet, due to special individual circumstances, remain capable of “perform[ing] the essential functions” of her job. Further, the SSA sometimes grants SSDI benefits to individuals who not only can work, but are working. For example, to facilitate a disabled person’s reentry into the work force, the SSA authorizes a 9-month trial-work period during which SSDI recipients may receive foil benefits. See 42 U.S.C. §§ 422(c), 423(e)(1); 20 CFR §404.1592 (1998). See also § 404.1592a (benefits available for an additional 15-month period depending upon earnings). Improvement in a totally disabled person’s physical condition, while permitting that person to work, will not necessarily or immediately lead the SSA to terminate SSDI benefits. And the nature of an individual’s disability may change over time, so that a statement about that disability at the time of an individual’s application for SSDI benefits may not reflect an individual’s capacities at the time of the relevant employment decision. merely applied for, but has not been awarded, SSDI benefits, any inconsistency in the theory of the claims is of the sort normally tolerated by our legal system. Our ordinary Rules recognize that a person may not be sure in advance upon which legal theory she will succeed, and so permit parties to “set forth two or more statements of a claim or defense alternately or hypothetically,” and to “state as many separate claims or defenses as the party has regardless of consistency.” Fed. Rule Civ. Proc. 8(e)(2). We do not see why the law in respect to the assertion of SSDI and ADA claims should differ. (And, as we said, we leave the law in respect to purely factual contradictions where we found it.) examples, we would not apply a special legal presumption permitting someone who has applied for, or received, SSDI benefits to bring an ADA suit only in “some limited and highly unusual set of circumstances.” 120 F. 3d, at 517. in some cases an earlier SSDI claim may turn out genuinely to conflict with an ADA claim. Summary judgment for a defendant is appropriate when the plaintiff “fails to make a showing sufficient to establish the existence of an element essential to [her] case, and on which [she] will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U. S. 317, 322 (1986). An ADA plaintiff bears the burden of proving that she is a “qualified individual with a disability” — that is, a person “who, with or without reasonable accommodation, can perform the essential functions” of her job. 42 U. S. C. § 12111(8). And a plaintiff’s sworn assertion in an application for disability benefits that she is, for example, “unable to work” will appear to negate an essential element of her ADA case — at least if she does not offer a sufficient explanation. For that reason, we hold that an ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability claim. Rather, she must proffer a sufficient explanation. have found a similar need for explanation. They have held with virtual unanimity that a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity. See, e. g., Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F. 3d 1, 5 (CA1 1994); Rule v. Brine, Inc., 85 F. 3d 1002, 1011 (CA2 1996); Hackman v. Valley Fair, 932 F. 2d 239,241 (CA3 1991); Barwick v. Celotex Corp., 736 F. 2d 946, 960 (CA4 1984); Albertson v. T. J. Stevenson & Co., 749 F. 2d 223, 228 (CA5 1984); Davidson & Jones Development Co. v. Elmore Development Co., 921F. 2d 1343, 1352 (CA6 1991); Slowiak v. Land O’Lakes, Inc., 987 F. 2d 1293, 1297 (CA7 1993); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F. 2d 1361, 1365-1366 (CA8 1983); Kennedy v. Allied Mutual Ins. Co., 952 F. 2d 262, 266 (CA9 1991); Franks v. Nimmo, 796 F. 2d 1230, 1237 (CA10 1986); Tippens v. Celotex Corp., 805 F. 2d 949, 953-954 (CA11 1986); Pyramid Securities Ltd. v. IB Resolution, Inc., 924 F. 2d 1114, 1123 (CADC), cert. denied, 502 U. S. 822 (1991); Sinskey v. Pharmacia Opthalmics, Inc., 982 F. 2d 494, 498 (CA Fed. 1992), cert. denied, 508 U. S. 912 (1993). Although these cases for the most part involve purely factual contradictions (as to which we do not necessarily endorse these cases, but leave the law as we found it), we believe that a similar insistence upon explanation is warranted here, where the conflict involves a legal conclusion. When faced with a plaintiff's previous sworn statement asserting “total disability” or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ADA claim. To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s good-faith belief in, the earlier statement, the plaintiff could nonetheless “perform the essential functions” of her job, with or without “reasonable accommodation.” HH HH In her brief in this Court, Cleveland explains the discrepancy between her SSDI statements that she was “totally disabled” and her ADA claim that she could “perform the essential functions” of her job. The first statements, she says, “were made in a forum which does not consider the effect that reasonable workplace accommodations would have on the ability to work.” Brief for Petitioner 43. Moreover, she claims the SSDI statements were “accurate statements” if examined “in the time period in which they were made.” Ibid. The parties should have the opportunity in the trial court to present, or to contest, these explanations, in sworn form where appropriate. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Stevens delivered the opinion of the Court. After a traumatic incident in which she shot and killed a man, a police officer received extensive counseling from a licensed clinical social worker. The question we address is whether statements the officer made to her therapist during the counseling sessions are protected from compelled disclosure in a federal civil action brought by the family of the deceased. Stated otherwise, the question is whether it is appropriate for federal courts to recognize a “psychotherapist privilege” under Rule 501 of the Federal Rules of Evidence. I Petitioner is the administrator of the estate of Ricky Allen. Respondents are Mary Lu Redmond, a former police officer, and the Village of Hoffman Estates, Illinois, her employer during the time that she served on the police force. Petitioner commenced this action against respondents after Redmond shot and killed Allen while.on patrol duty. On June 27,1991, Redmond was the first officer to respond to a “fight in progress” call at an apartment complex. As she arrived at the scene, two of Allen’s sisters ran toward her squad car, waving their arms and shouting that there had been a stabbing in one of the apartments. Redmond testified at trial.that she relayed this information to her dispatcher and requested an ambulance. She then exited her car and walked toward the apartment building. Before Redmond reached the building, several men ran out, one waving a pipe. When the men ignored her order to get on the ground, Redmond drew her service revolver. Two other men then burst out of the building, one, Ricky Allen, chasing the other. According to Redmond, Allen was brandishing a butcher knife and disregarded her repeated commands to drop the weapon. Redmond shot Allen when she believed he was about to stab the man he was chasing. Allen died at the scene. Redmond testified that before other officers arrived to provide support, “people came pouring out of the buildings,” App. 134, and a threatening confrontation between her and the crowd ensued. Petitioner filed suit in Federal District Court alleging that Redmond had violated Allen’s constitutional rights by using excessive force during the encounter at the apartment complex. The complaint sought damages under Rev. Stat. § 1979, 42 U. S. C. § 1983, and the Illinois wrongful-death statute, Ill. Comp. Stat., ch. 740, §180/1 et seq. (1994). At trial, petitioner presented testimony from members of Allen’s family that conflicted with Redmond’s version of the incident in several important respects. They testified, for example, that Redmond drew her gun before exiting her squad car and that Allen was unarmed when he emerged from the apartment building. During pretrial discovery petitioner learned that after the shooting Redmond had participated in about 50 counseling sessions with Karen Beyer, a clinical social worker licensed by the State of Illinois and employed at that time by the Village of Hoffman Estates. Petitioner sought access to Beyer’s notes concerning the sessions for use in cross-examining Redmond. Respondents vigorously resisted the discovery. They asserted that the contents of the conversations between Beyer and Redmond were protected against involuntary disclosure by a psychotherapist-patient privilege. The district judge rejected this argument. Neither Beyer nor Redmond, however, complied with his order to disclose the contents of Beyer’s notes. At depositions and on the witness stand both either refused to answer certain questions or professed an inability to recall details of their conversations. In his instructions at the end of the trial, the judge advised the jury that the refusal to turn over Beyer’s notes had no “legal justification” and that the jury could therefore presume that the contents of the notes would have been unfavorable to respondents. The jury awarded petitioner $45,000 on the federal claim and $500,000 on her state-law claim. The Court of Appeals for the Seventh Circuit reversed and remanded for a new trial. Addressing the issue for the first time, the court concluded that “reason and experience,” the touchstones for acceptance of a privilege under Rule 501 of the Federal Rules of Evidence, compelled recognition of a psychotherapist-patient privilege. 51 F. 3d 1346, 1355 (1995). “Reason tells us that psychotherapists and patients share a unique relationship, in which the ability to communicate freely without the fear of public disclosure is the key to successful treatment.” Id., at 1355-1356. As to experience, the court observed that all 50 States have adopted some form of the psychotherapist-patient privilege. Id., at 1356. The court attached particular significance to the fact that Illinois law expressly extends such a privilege to social workers like Karen Beyer. Id., at 1357. The court also noted that, with one exception, the federal decisions rejecting the privilege were more than five years old and that the “need and demand for counseling services has skyrocketed during the past several years.” Id., at 1355-1356. The Court of Appeals qualified its recognition of the privilege by stating that it would not apply if, “in the interests of justice, the evidentiary need for the disclosure of the contents of a patient’s counseling sessions outweighs that patient’s privacy interests.” Id., at 1357. Balancing those conflicting interests, the court observed, on the one hand, that the evidentiary need for the contents of the confidential conversations was diminished in this case because there were numerous eyewitnesses to the shooting, and, on the other hand, that Officer Redmond’s privacy interests were substantial. Id., at 1358. Based on this assessment, the court concluded that the trial court had erred by refusing to afford protection to the confidential communications between Redmond and Beyer. The United States Courts of Appeals do not uniformly agree that the federal courts should recognize a psychotherapist privilege under Rule 501. Compare In re Doe, 964 F. 2d 1325 (CA2 1992) (recognizing privilege); In re Zuniga, 714 F. 2d 632 (CA6) (same), cert. denied, 464 U. S. 983 (1983), with United States v. Burtrum, 17 F. 3d 1299 (CA10) (declining to recognize privilege), cert. denied, 513 U. S. 863 (1994); In re Grand Jury Proceedings, 867 F. 2d 562 (CA9) (same), cert. denied sub nom. Doe v. United States, 493 U. S. 906 (1989); United States v. Corona, 849 F. 2d 562 (CA11 1988) (same), cert. denied, 489 U. S. 1084 (1989); United States v. Meagher, 531 F. 2d 752 (CA5) (same), cert. denied, 429 U. S. 853 (1976). Because of the conflict among the Courts of Appeals and the importance of the question, we granted certiorari. 516 U. S. 930 (1995). We affirm. II Rule 501 of the Federal Rules of Evidence authorizes federal courts to define new privileges by interpreting “common law principles... in the light of reason and experience.” The authors of the Rule borrowed this phrase from our opinion in Wolfle v. United States, 291 U. S. 7, 12 (1934), which in turn referred to the oft-repeated observation that “the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions.” Funk v. United States, 290 U. S. 371, 383 (1933). See also Hawkins v. United States, 358 U. S. 74, 79 (1958) (changes in privileges may be “dictated by ‘reason and experience’ ”). The Senate Report accompanying the 1975 adoption of the Rules indicates that Rule 501 “should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship... should be determined on a case-by-case basis.” S. Rep. No. 93-1277, p. 13 (1974). The Rule thus did not freeze the law governing the privileges of witnesses in federal trials at a particular point in our history, but rather directed federal courts to “continue the evolutionary development of testimonial privileges.” Trammel v. United States, 445 U. S. 40, 47 (1980); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990). The common-law principles underlying the recognition of testimonial privileges can be stated simply. “Tor more than three centuries it has now been recognized as a fundamental maxim that the public... has a right to every man’s evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.’ ” United States v. Bryan, 339 U. S. 323, 331 (1950) (quoting 8 J. Wigmore, Evidence §2192, p. 64 (3d ed. 1940)). See also United States v. Nixon, 418 U. S. 683, 709 (1974). Exceptions from the general rule disfavoring testimonial privileges may be justified, however, by a “ ‘public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.’ ” Trammel, 445 U. S., at 50 (quoting Elkins v. United States, 364 U. S. 206, 234 (1960) (Frankfurter, J., dissenting)). Guided by these principles, the question we address today is whether a privilege protecting confidential communications between a psychotherapist and her patient “promotes sufficiently important interests to outweigh the need for probative evidence....” 445 U. S., at 51. Both “reason and experience” persuade us that it does. III Like the spousal and attorney-client privileges, the psychotherapist-patient privilege is “rooted in the imperative need for confidence and trust.” Ibid. Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment. As the Judicial Conference Advisory Committee observed in 1972 when it recommended that Congress recognize a psychotherapist privilege as part of the Proposed Federal Rules of Evidence, a psychiatrist’s ability to help her patients “‘is completely dependent upon [the patients’] willingness and ability to talk freely. This makes it difficult if not impossible for [a psychiatrist] to function without being able to assure... patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule..., there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment.’” Advisory Committee’s Notes to Proposed Rules, 56 F. R. D. 183, 242 (1972) (quoting Group for Advancement of Psychiatry, Report No. 45, Confidentiality and Privileged Communication in the Practice of Psychiatry 92 (June 1960)). By protecting confidential communications between a psychotherapist and her patient from involuntary disclosure, the proposed privilege thus serves important private interests. Our cases make clear that an asserted privilege must also “serv[e] public ends.” Upjohn Co. v. United States, 449 U. S. 383, 389 (1981). Thus, the purpose of the attorney-client privilege is to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Ibid. And the spousal privilege, as modified in Trammel, is justified because it “furthers the important public interest in marital harmony,” 445 U. S., at 53. See also United States v. Nixon, 418 U. S., at 705; Wolfle v. United States, 291 U. S., at 14. The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance. In contrast to the significant public and private interests supporting recognition of the privilege, the likely evidentiary benefit that would result from the denial of the privilege is modest. If the privilege were rejected, confidential conversations between psychotherapists and their patients would surely be chilled, particularly when it is obvious that the circumstances that give rise to the need for treatment will probably result in litigation. Without a privilege, much of the desirable evidence to which litigants such as petitioner seek access — for example, admissions against interest by a party — is unlikely to come into being. This unspoken “evidence” will therefore serve no greater truth-seeking function than if it had been spoken and privileged. That it is appropriate for the federal courts to recognize a psychotherapist privilege under Rule 501 is confirmed by the fact that all 50 States and the District of Columbia have enacted into law some form of psychotherapist privilege. We have previously observed that the policy decisions of the States bear on the question whether federal courts should recognize a new privilege or amend the coverage of an existing one. See Trammel, 445 U. S., at 48-50; United States v. Gillock, 445 U. S. 360, 368, n. 8 (1980). Because state legislatures are fully aware of the need to protect the integrity of the factfinding functions of their courts, the existence of a consensus among the States indicates that “reason and experience” support recognition of the privilege. In addition, given the importance of the patient’s understanding that her communications with her therapist will not be publicly disclosed, any State’s promise of confidentiality would have little value if the patient were aware that the privilege would not be honored in a federal court. Denial of the federal privilege therefore would frustrate the purposes of the state legislation that was enacted to foster these confidential communications. It is of no consequence that recognition of the privilege in the vast majority of States is the product of legislative action rather than judicial decision. Although common-law rulings may once have been the primary source of new developments in federal privilege law, that is no longer the case. In Funk v. United States, 290 U. S. 371 (1933), we recognized that it is appropriate to treat a consistent body of policy determinations by state legislatures as reflecting both “reason” and “experience.” Id., at 376-381. That rule is properly respectful of the States and at the same time reflects the fact that once a state legislature has enacted a privilege there is no longer an opportunity for common-law creation of the protection. The history of the psychotherapist privilege illustrates the latter point. In 1972 the members of the Judicial Conference Advisory Committee noted that the common law “had indicated a disposition to recognize a psychotherapist-patient privilege when legislatures began moving into the field.” Proposed Rules, 56 F. R. D., at 242 (citation omitted). The present unanimous acceptance of the privilege shows that the state lawmakers moved quickly. That the privilege may have developed faster legislatively than it would have in the courts demonstrates only that the States rapidly recognized the wisdom of the rule as the field of psychotherapy developed. The uniform judgment of the States is reinforced by the fact that a psychotherapist privilege was among the nine specific privileges recommended by the Advisory Committee in its proposed privilege rules. In United States v. Gillock, 445 U. S., at 367-368, our holding that Rule 501 did not include a state legislative privilege relied, in part, on the fact that no such privilege was included in the Advisory Committee’s draft. The reasoning in Gillock thus supports the opposite conclusion in this case. In rejecting the proposed draft that had specifically identified each privilege rule and substituting the present more open-ended Rule 501, the Senate Judiciary Committee explicitly stated that its action “should not be understood as disapproving any recognition of a psychiatrist-patient... privileg[e] contained in the [proposed] rules.” S. Rep. No. 93-1277, at 13. Because we agree with the judgment of the state legislatures and the Advisory Committee that a psychotherapist-patient privilege will serve a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth,” Trammel, 445 U. S., at 50, we hold that confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence. IV All agree that a psychotherapist privilege covers confidential communications made to licensed psychiatrists and psychologists. We have no hesitation in concluding in this case that the federal privilege should also extend to confidential communications made to licensed social workers in the course of psychotherapy. The reasons for recognizing a privilege for treatment by psychiatrists and psychologists apply with equal force to treatment by a clinical social worker such as Karen Beyer. Today, social workers provide a significant amount of mental health treatment. See, e. g., U. S. Dept. of Health and Human Services, Center for Mental Health Services, Mental Health, United States, 1994, pp. 85-87, 107-114; Brief for National Association of Social Workers et al. as Amici Curiae 5-7 (citing authorities). Their clients often include the poor and those of modest means who could not afford the assistance of a psychiatrist or psychologist, id., at 6-7 (citing authorities), but whose counseling sessions serve the same public goals. Perhaps in recognition of these circumstances, the vast majority of States explicitly extend a testimonial privilege to licensed social workers. We therefore' agree with the Court of Appeals that “[d]rawing a distinction between the counseling provided by costly psychotherapists and the counseling provided by more readily accessible social workers serves no discernible public purpose.” 51 F. 3d, at 1358, n. 19. We part company with the Court of Appeals on a separate point. We reject the balancing component of the privilege implemented by that court and a small number of States. Making the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege. As we explained in Upjohn, if the purpose of the privilege is to be served, the participants in the confidential conversation “must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” 449 U. S., at 393. These considerations are all that is necessary for decision of this case. A rule that authorizes the recognition of new privileges on a case-by-case basis makes it appropriate to define the details of new privileges in a like manner. Because this is the first case in which we have recognized a psychotherapist privilege, it is neither necessary nor feasible to delineate its full contours in a way that would “govern all conceivable future questions in this area.” Id., at 386. V The conversations between Officer Redmond and Karen Beyer and the notes taken during their counseling sessions are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence. The judgment of the Court of Appeals is affirmed. It is so ordered. Redmond left the police department after the events at issue in this lawsuit. App. to Pet. for Cert. 67. Rule 501 provides as follows: “Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State or political subdivision thereof shall be determined in accordance with State law.” See Illinois Mental Health and Developmental Disabilities Confidentiality Act, Ill. Comp. Stat., ch. 740, §§ 110/1 — 110/17 (1994). “Her ability, through counseling, to work out the pain and anguish undoubtedly caused by Allen’s death in all probability depended to a great deal upon her trust and confidence in her counselor Karen Beyer. Officer Redmond, and all those placed in her most unfortunate circumstances, are entitled to be protected in their desire to seek counseling after mortally wounding another human being in the line of duty. An individual who is troubled as the result of her participation in a violent and tragic event, such as this, displays a most commendable respect for human life and is a person well-suited ‘to protect and to serve.’” 51 F. 3d, at 1358. “[T]he rules governing the competence of witnesses in criminal trials in the federal courts are not necessarily restricted to those local rules in force at the time of the admission into the Union of the particular state where the trial takes place, but are governed by common law principles as interpreted and applied by the federal courts in the light of reason and experience. Funk v. United States, 290 U. S. 371.” Wolfle v. United States, 291 U. S., at 12-13. In 1972 the Chief Justice transmitted to Congress proposed Rules of Evidence for United States Courts and Magistrates. 56 F. R. D. 183 (hereinafter Proposed Rules). The Rules had been formulated by the Judicial Conference Advisory Committee on Rules of Evidence and approved by the Judicial Conference of the United States and by this Court. Trammel v. United States, 445 U. S. 40, 47 (1980). The Proposed Rules defined nine specific testimonial privileges, including a psychotherapist-patient privilege, and indicated that these were to be the exclusive privileges absent constitutional mandate, Act of Congress, or revision of the Rules. Proposed Rules 501-513, 56 F. R. D., at 230-261. Congress rejected this recommendation in favor of Rule 501’s general mandate. Trammel, 445 U. S., at 47. The familiar expression “every man’s evidence” was a well-known phrase as early as the mid-18th century. Both the Duke of Argyll and Lord Chancellor Hardwicke invoked the maxim during the May 25, 1742, debate in the House of Lords concerning a bill to grant immunity to witnesses who would give evidence against Sir Robert Walpole, first Earl of Orford. 12 T. Hansard, Parliamentary History of England 643, 675, 693, 697 (1812). The bill was defeated soundly. Id., at 711. See studies and authorities cited in the Brief for American Psychiatric Association et al. as Amici Curiae 14-17 and the Brief for American Psychological Association as Amicus Curiae 12-17. This case amply demonstrates the importance of allowing individuals to receive confidential counseling. Police officers engaged in the dangerous and difficult tasks associated with protecting the safety of our communities not only confront the risk of physical harm but also face stressful circumstances that may give rise to anxiety, depression, fear, or anger. The entire community may suffer if police officers are not able to receive effective counseling and treatment after traumatic incidents, either because trained officers leave the profession prematurely or because those in need of treatment remain on the job. Ala. Code §34-26-2 (1975); Alaska Rule Evid. 504; Ariz. Rev. Stat. Ann. §32-2085 (1992); Ark. Rule Evid. 503; Cal. Evid. Code Ann. §§1010, 1012, 1014 (West 1995); Colo. Rev. Stat. § 13-90-107(g) (Supp. 1995); Conn. Gen. Stat. §52-146c (1995); Del. Uniform Rule Evid. 503; D. C. Code Ann. §14-307 (1995); Fla. Stat. §90.503 (Supp. 1992); Ga. Code Ann. §24-9-21 (1995); Haw. Rules Evid. 504, 504.1; Idaho Rule Evid. 503; Ill. Comp. Stat., ch. 225, §15/5 (1994); Ind. Code §25-33-1-17 (1993); Iowa Code §622.10 (1987); Kan. Stat. Ann. §74-5323 (1985); Ky. Rule Evid. 507; La. Code Evid. Ann., Art. 510 (West 1995); Me. Rule Evid. 503; Md. Cts. & Jud. Proc. Code Ann. §9-109 (1995); Mass. Gen. Laws §233:20B (1995); Mich. Comp. Laws Ann. §333.18237 (West Supp. 1996); Minn. Stat. §595.02 (1988 and Supp. 1996); Miss. Rule Evid. 503; Mo. Rev. Stat. §491.060 (1994); Mont. Code Ann. §26-1-807 (1994); Neb. Rev. Stat. §27-504 (1995); Nev. Rev. Stat. §49.215 (1993); N. H. Rule Evid. 503; N. J. Stat. Ann. §45:14B-28 (West 1995); N. M. Rule Evid. 11-504; N. Y. Civ. Prac. Law §4507 (McKinney 1992); N. C. Gen. Stat. §8-53.3 (Supp. 1995); N. D. Rule Evid. §503; Ohio Rev. Code Ann. §2317.02 (1995); Okla. Stat., Tit. 12, §2503 (1991); Ore. Rules Evid. 504, 504.1; 42 Pa. Cons. Stat. §5944 (1982); R. I. Gen. Laws §§5-37.3-3, 5-37.3-4 (1995); S. C. Code Ann. §19-11-95 (Supp. 1995); S. D. Codified Laws §§ 19-13-6 to 19-13-11 (1995); Tenn. Code Ann. §24-1-207 (1980); Tex. Rules Civ. Evid. 509, 510; Utah Rule Evid. 506; Vt. Rule Evid. 503; Va. Code Ann. §8.01-400.2 (1992); Wash. Rev. Code §18.83.110 (1994); W. Va. Code §27-3-1 (1992); Wis. Stat. §905.04 (1993-1994); Wyo. Stat. §33-27-123 (Supp. 1995). At the outset of their relationship, the ethical therapist must disclose to the patient “the relevant limits on confidentiality.” See American Psychological Association, Ethical Principles of Psychologists and Code of Conduct, Standard 5.01 (Dec. 1992). See also National Federation of Societies for Clinical Social Work, Code of Ethics V(a) (May 1988); American Counseling Association, Code of Ethics and Standards of Practice A.3.a (effective July 1995). Petitioner acknowledges that all 50 state legislatures favor a psychotherapist privilege. She nevertheless discounts the relevance of the state privilege statutes by pointing to divergence among the States concerning the types of therapy relationships protected and the exceptions recognized. A small number of state statutes, for example, grant the privilege only to psychiatrists and psychologists, while most apply the protection more broadly. Compare Haw. Rules Evid. 504, 504.1 and N. D. Rule Evid. 503 (privilege extends to physicians and psychotherapists), with Ariz. Rev. Stat. Ann. §32-3283 (1992) (privilege covers “behavioral health professionals]”); Tex. Rule Civ. Evid. 510(a)(1) (privilege extends to persons “licensed or certified by the State of Texas in the diagnosis, evaluation or treatment of any mental or emotional disorder” or “involved in the treatment or examination of drug abusers”); Utah Rule Evid. 506 (privilege protects confidential communications made to marriage and family therapists, professional counselors, and psychiatric mental health nurse specialists). The range of exceptions recognized by the States is similarly varied. Compare Ark. Code Ann. § 17-46-107 (1987) (narrow exceptions); Haw. Rules Evid. 504, 504.1 (same), with Cal. Evid. Code Ann. §§ 1016-1027 (West 1995) (broad exceptions); R. I. Gen. Laws §5-37.3-4 (1995) (same). These variations in the scope of the protection are too limited to undermine the force of the States’ unanimous judgment that some form of psychotherapist privilege is appropriate. Like other testimonial privileges, the patient may of course waive the protection. If petitioner had filed her complaint in an Illinois state court, respondents’ claim of privilege would surely have been upheld, at least with respect to the state wrongful-death action. An Illinois statute provides that conversations between a therapist and her patients are privileged from compelled disclosure in any civil or criminal proceeding. Ill. Comp. Stat., ch. 740, §110/10 (1994). The term “therapist” is broadly defined to encompass a number of licensed professionals including social workers. Ch. 740, § 110/2. Karen Beyer, having satisfied the strict standards for licensure, qualifies as a clinical social worker in Illinois. 51 F. 3d 1346, 1358, n. 19 (CA7 1995). Indeed, if only a state-law claim had been asserted in federal court, the second sentence in Rule 501 would have extended the privilege to that proceeding. We note that there is disagreement concerning the proper rule in cases such as this in which both federal and state claims are asserted in federal court and relevant evidence would be privileged under state law but not under federal law. See C. Wright & K. Graham, 23 Federal Practice and Procedure §5434 (1980). Because the parties do not raise this question and our resolution of the case does not depend on it, we express no opinion on the matter. The Judicial Conference Advisory Committee’s proposed psychotherapist privilege defined psychotherapists as psychologists and medical doctors who provide mental health services. Proposed Rules, 56 F. R. D., at 240. This limitation in the 1972 recommendation does not counsel against recognition of a privilege for social workers practicing psychotherapy. In the quarter century since the Committee adopted its recommendations, much has changed in the domains of social work and psychotherapy. See generally Brief for National Association of Social Workers et al. as Amici Curiae 5-13 (and authorities cited). While only 12 States regulated social workers in 1972, all 50 do today. See American Association of State Social Work Boards, Social Work Laws and Board Regulations: A State Comparison Study 29, 31 (1996). Over the same period, the relative portion of therapeutic services provided by social workers has increased substantially. See U. S. Dept. of Health and Human Services, Center for Mental Health Services, Mental Health, United States, 1994, pp. 85-87, 107-114. See Ariz. Rev. Stat. Ann. § 32-3283 (1992); Ark. Code Ann. § 17-46-107 (1995); Cal. Evid. Code Ann. §§ 1010, 1012, 1014 (West 1995); Colo. Rev. Stat. § 13-90-107 (1987); Conn. Gen. Stat. § 52-146q (1995); Del. Code Ann., Tit. 24, §3913 (1987); D. C. Code Ann. §14-307 (1995); Fla. Stat. §90.503 (1991); Ga. Code Ann. §24-9-21 (1995); Idaho Code §54-3213 (1994); Ill. Comp. Stat., eh. 225, §20/16 (1994); Ind. Code §25-23.6-6-1 (1993); Iowa Code §622.10 (1987); Kan. Stat. Ann. §65-6315 (Supp. 1990); Ky. Rule Evid. 507; La. Code Evid. Ann., Art. 510 (West 1995); Me. Rev. Stat. Ann., Tit. 32, §7005 (1988); Md. Cts. & Jud. Proc. Code Ann. §9-121 (1995); Mass. Gen. Laws §112:135A (1994); Mich. Comp. Laws Ann. §339.1610 (West 1992); Minn. Stat. § 595.02(g) (1994); Miss. Code Ann. §73-53-29 (1995); Mo. Rev. Stat. §337.636 (Supp. 1996); Mont. Code Ann. §37-22-401 (1995); Neb. Rev. Stat. §71-1,335 (1995); Nev. Rev. Stat. §§49.215, 49.225, 49.235 (1993); N. H. Rev. Stat. Ann. §330-A:19 (1995); N. J. Stat. Ann. §45:15BB-13 (West 1995); N. M. Stat. Ann. §61-31-24 (Supp. 1995); N. Y. Civ. Prac. Law §4508 (McKinney 1992); N. C. Gen. Stat. §8-53.7 (1986); Ohio Rev. Code Ann. §2317.02 (1995); Okla. Stat., Tit. 59, §1261.6 (1991); Ore. Rev. Stat. §40.250 (1991); R. I. Gen. Laws §§5-37.3-3, 5-37.3-4 (1995); S. C. Code Ann. §19-11-95 (Supp. 1995); S. D. Codified Laws §36-26-30 (1994); Term. Code Ann. §63-23-107 (1990); Tex. Rule Civ. Evid. 510; Utah Rule Evid. 506; Vt. Rule Evid. 503; Va. Code Ann. § 8.01-400.2 (1992); Wash. Rev. Code §18.19.180 (1994); W. Va. Code Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice O’Connor delivered the opinion of the Court. Federal habeas relief is available to state prisoners only after they have exhausted their claims in state court. 28 U.S. C. §§ 2254(b)(1), (c) (1994 ed. and Supp. III). In this case, we are asked to decide whether a state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement We conclude that he must. I In 1977, respondent Darren Boerckel was tried in the Circuit Court of Montgomery County, Illinois, for the rape, burglary, and aggravated battery of an 87-year-old woman. The central evidence against him at trial was his written confession to the crimes, a confession admitted over Boerekel’s objection. The jury convicted Boerckel on all three charges, and he was sentenced to serve 20 to 60 years’ imprisonment on the rape charge, and shorter terms on the other two charges, with all sentences to be served concurrently. Boerckel of Illinois, raising several issues. He argued, among other things, that his confession should have been suppressed because the confession was the fruit of an illegal arrest, because the confession was coerced, and because he had not knowingly and intelligently waived his rights under Miranda v. Arizona, 384 U. S. 436 (1966). Boerckel also claimed that prosecutorial misconduct denied him a fair trial, that he had been denied discovery of exculpatory material held by the police, and that the evidence was insufficient to support his conviction. The Illinois Appellate Court, with one justice dissenting, rejected Boerekel’s claims and affirmed his convictions and sentences. People v. Boerckel, 68 Ill. App. 3d 103, 385 N. E. 2d 815 (1979). Illinois Supreme Court. In this petition, he raised only three issues. Boerckel claimed first that his confession was the fruit of an unlawful arrest because, contrary to the Appellate Court’s ruling, he was under arrest when he gave his confession. Boerckel also contended that he was denied a fair trial by prosecutorial misconduct and that he had been erroneously denied discovery of exculpatory material in the possession of the police. The Illinois Supreme Court denied the petition for leave to appeal, and this Court denied BoerckePs subsequent petition for a writ of certiorari. Boerckel v. Illinois, 447 U. S. 911 (1980). a pro se petition for a writ of ha-beas corpus under 28 U. S. C. § 2254 in the United States District Court for the Central District of Illinois. The District Court appointed counsel for Boerckel, and BoerckePs counsel filed an amended petition in March 1995. The amended petition asked for relief on six grounds: (1) that Boerckel had not knowingly and intelligently waived his Miranda rights; (2) that his confession was not voluntary; (3) that the evidence against him was insufficient to sustain the conviction; (4) that his confession was the fruit of an illegal arrest; (5) that he received ineffective assistance of counsel at trial and on appeal; and (6) that his right to discovery of exculpatory material under Brady v. Maryland, 373 U. S. 83 (1963), was violated. In an order dated November 15, 1995, the District Court found, as relevant here, that Boerckel had procedurally defaulted his first, second, and third claims by failing to include them in his petition for leave to appeal to the Illinois Supreme Court. No. 94-3258 (CD Ill.), pp. 4-10. Boerckel attempted to overcome the procedural defaults by presenting evidence that he fell within the “fundamental miscarriage of justice” exception to the procedural default rule. See Coleman v. Thompson, 501 U. S. 722, 750 (1991). At a hearing on this issue, Boerckel argued that he was actually innocent of the offenses for which he had been convicted and he presented evidence that he claimed showed that two other men were responsible for the crimes. In a subsequent ruling, the District Court concluded that Boerckel had failed to satisfy the standards established in Schlup v. Delo, 513 U. S. 298 (1995), for establishing the “fundamental miscarriage of justice” exception, and thus held that Boerckel could not overcome the procedural bars preventing review of his claims. No. 94-8258 (CD Ill., Oct. 28, 1996), pp. 14-15. After rejecting Boerekel’s remaining claims for relief, the District Court denied his habeas petition. Id., at 18. On appeal, the Court of considered one question, namely, whether Boerekel had procedurally defaulted the first three claims in his habeas petition (whether he knowingly and intelligently waived his Miranda rights, whether his confession was voluntary, and whether the evidence was sufficient to support a verdict) by failing to raise those claims in his petition for leave to appeal to the Illinois Supreme Court. The Court of Appeals reversed the judgment of the District Court denying Boerckel’s habeas petition and remanded for further proceedings. 135 F. 3d 1194 (1998). The court concluded that Boerekel was not required to present his claims in a petition for discretionary review to the Illinois Supreme Court to satisfy the exhaustion requirement. Id., at 1199-1202. Thus, according to the Court of Appeals, Boerekel had not procedurally defaulted those claims. Id., at 1202. We granted certiorari to resolve a of Appeals on this issue. 525 U. S. 999 (1998). Compare e.g., Richardson v. Procunier, 762 F. 2d 429 (CA5 1985) (must file petition for discretionary review), with Dolny v. Erickson, 32 F. 3d 381 (CA8 1994) (petition for discretionary review not required), cert. denied, 513 U. S. 1111 (1995). > — 1 1 — 1 Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. The exhaustion doctrine, first announced in Ex parte Royall, 117 U. S. 241 (1886), is now codified at 28 U. S. C. § 2254(b)(1) (1994 ed., Supp. III). This doctrine, however, raises a recurring question: What state remedies must a habeas petitioner invoke to satisfy the federal exhaustion requirement? See Castille v. Peoples, 489 U. S. 346, 349-350 (1989); Wainwrigkt v. Sykes, 433 U. S. 72, 78 (1977). The particular question posed by this case is whether a prisoner must seek review in a state court of last resort when that court has discretionary control over its docket. Illinois law provides for a two-tiered appellate review process. Criminal defendants are tried in the local circuit courts, and although some criminal appeals (e. g., those in which the death penalty is imposed) are heard directly by the Supreme Court of Illinois, most criminal appeals are heard first by an intermediate appellate court, the Appellate Court of Illinois. Ill. Sup. Ct. Rule 603 (1998). A party may petition for leave to appeal a decision by the Appellate Court to the Illinois Supreme Court (with exceptions that are irrelevant here), but whether “such a petition will be granted is a matter of sound judicial discretion.” Rule 315(a). See also Rule 612(b) (providing that Rule 315 governs criminal, as well as civil, appeals). Rule 315 elaborates on the exercise of this discretion as follows: “The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of reasons which will be considered: the general importance of the question presented; the existence of a conflict between the decision sought to be reviewed and a decision of the Supreme Court, or of another division of the Appellate Court; the need for the exercise of the Supreme Court’s supervisory authority; and the final or interlocutory character of the judgment sought to be reviewed.” Rule 315(a). Boerckel’s amended federal habeas petition raised three claims that he had not included in his petition for leave to appeal to the Illinois Supreme Court. To determine whether Boerckel was required to present those claims to the Illinois Supreme Court in order to exhaust his state remedies, we turn first to the language of the federal habeas statute. Section 2254(e) provides that a habeas petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented.” Although this language could be read to effectively foreclose habeas review by requiring a state prisoner to invoke any possible avenue of state court review, we have never interpreted the exhaustion requirement in such a restrictive fashion. See Wilwording v. Swenson, 404 U. S. 249, 249-250 (1971) (per curiam). Thus, we have not interpreted the exhaustion doctrine to require prisoners to file repetitive petitions. See Brown v. Allen, 344 U. S. 443, 447 (1953) (holding that a prisoner does not have “to ask the state for collateral relief, based on the same evidence and issues already decided by direct review”). We have also held that state prisoners do not have to invoke extraordinary remedies when those remedies are alternatives to the standard review process and where the state courts have not provided relief through those remedies in the past. See Wilwording v. Swenson, supra, at 249-250 (rejecting suggestion that state prisoner should have invoked “any of a number of possible alternatives to state habeas including ‘a suit for injunction, a writ of prohibition, or mandamus or a declaratory judgment in the state courts,’ or perhaps other relief under the State Administrative Procedure Act”). Section 2254(e) requires only that state state courts a fair opportunity to act on their claims. See Castille v. Peoples, supra, at 351; Picard v. Connor, 404 U. S. 270, 275-276 (1971). State courts, like federal courts, are obliged to enforce federal law. Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and proviole any necessary relief. Rose v. Lundy, 455 U. S. 509, 515-516 (1982); Darr v. Burford, 339 U. S. 200, 204 (1950). This rule of comity reduces friction between the state and federal court systems by avoiding the “unseemfliness]” of a federal district court’s overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance. Ibid. See also Duckworth v. Serrano, 454 U. S. 1, 3-4 (1981) (per curiam); Rose v. Lundy, supra, at 515-516. the exhaustion doctrine is designed to give the state courts a Ml and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, we conclude that state prisoners must give the state courts one Ml opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process. Here, Illinois’ established, normal appellate review procedure is a two-tiered system. Comity, in these circumstances, dictates that Boerckel use the State’s established appellate review procedures before he presents his claims to a federal court. Unlike the extraordinary procedures that we found unnecessary in Brown v. Allen and Wilwording v. Swenson, a petition for discretionary review in Illinois’ Supreme Court is a normal, simple, and established part of the State’s appellate review process. In the words of the statute, state prisoners have “the right... to raise” their claims through a petition for discretionary review in the State’s highest court. § 2254(e). Granted, as Boerckel contends, Brief for Respondent 16, he has no right to review in the Illinois Supreme Court, but he does have a “right ... to raise” his claims before that court. That is all § 2254(e) requires. conclusion with two related arguments. His first argument is grounded in a stylized portrait of the Illinois appellate review process. According to Boerckel, Illinois’ appellate review procedures make the intermediate appellate courts the primary focus of the system; all routine claims of error are directed to those courts. The Illinois Supreme Court, by contrast, serves only to answer “questions of broad significance.” Id., at 4. Boer-ckel’s view of Illinois’ appellate review process derives from Ill. Sup. Ct. Rule 315(a) (1998). He reads this Rule to discourage the filing of petitions raising routine allegations of error and to direct litigants to present only those claims that meet the criteria defined by the Rule. Rule 315(a), by its own terms, however, does not “eontro[l]” or “measur[e]” the Illinois Supreme Court’s discretion. The Illinois Supreme Court is free to take eases that do not fall easily within the descriptions listed in the Rule. Moreover, even if we were to assume that the Rule discourages the filing of certain petitions, it is difficult to discern which eases fall into the “discouraged” category. In this case, for example, the parties disagree about whether, under the terms of Rule 315(a), Boerckel’s claims should have been presented to the Illinois Supreme Court. Compare Brief for Respondent 5 with Reply Brief for Petitioner 5. The better reading of Rule 315(a) is that the Illinois Supreme Court has the opportunity to decide which cases it will consider on the merits. The fact that Illinois has adopted a discretionary review system may reflect little more than that there are resource constraints on the Illinois Supreme Court’s ability to hear every ease that is presented to it. It may be that, given the necessity of a discretionary review system, the Rule allows the Illinois Supreme Court to expend its limited resources on “questions of broad significance.” We cannot conclude from this Rule, however, that review in the Illinois Supreme Court is unavailable. By requiring state prisoners to give the Illinois Supreme Court the opportunity to resolve constitutional errors in the first instance, the rule we announce today serves the comity interests that drive the exhaustion doctrine. Boerekel’s second argument is related to his first. According to Boerekel, because the Illinois Supreme Court has announced (through Rule 315(a)) that it does not want to hear routine allegations of error, a rule requiring state prisoners to file petitions for review with that court offends comity by inundating the Illinois Supreme Court with countless unwanted petitions. Brief for Respondent 8-14. See also 135 F. 3d, at 1201. This point, of course, turns on Boerekel’s interpretation of Rule 315(a), an interpretation that, as discussed above, we do not find persuasive. Nor is it clear that the rule we announce today will have the effect that Boerckel predicts. We do not know, for example, what percentage of Illinois state prisoners who eventually seek federal habeas relief decline, in the first instance, to seek review in the Illinois Supreme Court. We acknowledge that the rule we announce today — requiring state prisoners to file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State — has the potential to increase the number of filings in state supreme courts. We also recognize that this increased burden may be unwelcome in some state courts because the courts do not wish to have the opportunity to review constitutional claims before those claims are presented to a federal habeas' court. See, e. g., In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 321 S. C. 563, 471 S. E. 2d 454 (1990); see also State v. Sandon, 161 Ariz. 157, 777 P. 2d 220 (1989). Under these circumstances, Boerckel may be correct that the increased, unwelcome burden on state supreme courts disserves the comity interests underlying the exhaustion doctrine. In this regard, we note that nothing in our decision today requires the exhaustion of any specific state remedy when a State has provided that that remedy is unavailable. Section 2254(c), in fact, directs federal courts to consider whether a habeas petitioner has “the right under the law of the State to raise, by any available procedure, the question presented.” (Emphasis added.) The exhaustion doctrine, in other words, turns on an inquiry into what procedures are “available” under state law. In sum, there is nothing in the exhaustion doctrine requiring federal courts to ignore a state law or rule providing that a given procedure is not available. We hold today only that the creation of a discretionary review system does not, without more, make review in the Illinois Supreme Court unavailable. claims that he had pressed before the Appellate Court of Illinois, but that he had not included in his petition for leave to appeal to the Illinois Supreme Court. There is no dispute that this state court remedy — a petition for leave to appeal to the Illinois Supreme Court — is no longer available to Boerekel; the time for filing such a petition has long passed. See Ill. Sup. Ct. Rule 315(b). Thus, BoerckeFs failure to present three of his federal habeas claims to the Illinois Supreme Court in a timely fashion has resulted in a procedural default of those claims. See Coleman v. Thompson, 501 U. S., at 731-732; Engle v. Isaac, 456 U. S. 107, 125— 126, n. 28 (1982). We do not disagree with Justice scription of the law of exhaustion and procedural default. Specifically, we do not disagree with his description of the interplay of these two doctrines. Post, at 853-854 (dissenting opinion). As Justice Stevens notes, a prisoner could evade the exhaustion requirement — and thereby undercut the values that it serves — by “letting the time run” on state remedies. Post, at 853. To avoid this result, and thus “protect the integrity” of the federal exhaustion rule, ibid., we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i. e., whether he has fairly presented his claims to the state courts, see post, at 854. Our disagreement with Justice Stevens in this case turns on our differing answers to this last question: Whether a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has properly presented his claims to the state courts. Because we answer this question “no,” we conclude that Boerekel has proeedurally defaulted his claims. Accordingly, the judgment of the Court of Appeals for the Seventh Circuit is reversed. It is so ordered. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice ALITO delivered the opinion of the Court. We must decide in this case whether the Airline Deregulation Act pre-empts a state-law claim for breach of the implied covenant of good faith and fair dealing. Following our interpretation of the Act in American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), we hold that such a claim is pre-empted if it seeks to enlarge the contractual obligations that the parties voluntarily adopt. And because the doctrine is invoked in the present case in an attempt to expand those obligations, we reverse the judgment of the Court of Appeals. I A Like many airlines, petitioner Northwest, Inc. (Northwest), established a frequent flyer program, its WorldPerks Airline Partners Program, to attract loyal customers. Under this program, members are able to earn "miles" by taking flights operated by Northwest and other "partner" airlines. Members can then redeem these miles for tickets and service upgrades with Northwest or its airline partners. Respondent became a member of Northwest's WorldPerks program in 1999, and as a result of extensive travel on Northwest flights, he achieved "Platinum Elite" status (the highest level available) in 2005. In 2008, however, Northwest terminated respondent's membership, apparently in reliance on a provision of the WorldPerks agreement that provided that "[a]buse of the ... program (including ... improper conduct as determined by [Northwest] in its sole judgment[ ) ] ... may result in cancellation of the member's account." App. 64-65. According to respondent, a Northwest representative telephoned him in June 2008 and informed him that his "Platinum Elite" status was being revoked because he had " 'abused' " the program. Id., at 35. In a letter sent about two weeks later, Northwest wrote: "[Y]ou have contacted our office 24 times since December 3, 2007 regarding travel problems, including 9 incidents of your bag arriving late at the luggage carousel.... . . . . . "Since December 3, 2007, you have continually asked for compensation over and above our guidelines. We have awarded you $1,925.00 in travel credit vouchers, 78,500 WorldPerks bonus miles, a voucher extension for your son, and $491.00 in cash reimbursements.... "Due to our past generosity, we must respectfully advise that we will no longer be awarding you compensation each time you contact us." Id., at 58-59. Respondent requested clarification of his status, but a Northwest representative sent him an e-mail stating that "[a]fter numerous conversations with not only the Legal Department, but with members of the WorldPerks department, I believe your status with the program should be very clear." Id., at 60. B Alleging that Northwest had ended his membership as a cost-cutting measure tied to Northwest's merger with Delta Air Lines, respondent filed a class action in the United States District Court for the Southern District of California on behalf of himself and all other similarly situated WorldPerks members. Respondent's complaint asserted four separate claims.1 First, his complaint alleged that Northwest had breached its contract by revoking his "Platinum Elite" status without valid cause. Second, the complaint claimed that Northwest violated the duty of good faith and fair dealing because it terminated his membership in a way that contravened his reasonable expectations with respect to the manner in which Northwest would exercise its discretion. Third, the complaint asserted a claim for negligent misrepresentation, and fourth, the complaint alleged intentional misrepresentation. Respondent sought damages in excess of $5 million, as well as injunctive relief requiring Northwest to restore the class members' WorldPerks status and prohibiting Northwest from future revocations of membership. The District Court held that respondent's claims for breach of the covenant of good faith and fair dealing, negligent misrepresentation, and intentional misrepresentation were pre-empted by the Airline Deregulation Act of 1978 (ADA or Act) as amended, 49 U.S.C. § 41713. These claims, the court concluded, were "relate[d] to" Northwest's rates and services and thus fell within the ADA's express pre-emption clause. App. to Pet. for Cert. 69. Respondent's remaining claim-for breach of contract-was dismissed without prejudice under Federal Rule of Civil Procedure 12(b)(6). The court held that respondent had failed to identify any material breach because the frequent flyer agreement gave Northwest sole discretion to determine whether a participant had abused the program. Respondent appealed the dismissal of his breach of the duty of good faith and fair dealing claim but not the other claims that the court had dismissed. The Ninth Circuit reversed. 695 F.3d 873 (2012). Relying on pre-Wolens Circuit precedent, the Ninth Circuit first held that a breach of implied covenant claim is " 'too tenuously connected to airline regulation to trigger preemption under the ADA.' " 695 F.3d, at 879. Such a claim, the Ninth Circuit wrote, "does not interfere with the [Act's] deregulatory mandate" and does not " 'force the Airlines to adopt or change their prices, routes or services-the prerequisite for ... preemption.' " Id., at 880. In addition, the Court held that the covenant of good faith and fair dealing does not fall within the terms of the Act's pre-emption provision because it does not have a "direct effect" on either "prices" or "services." Id., at 877, 881. We granted certiorari. 569 U.S. ----, 133 S.Ct. 2387, 185 L.Ed.2d 1103 (2013). II A Before the enactment of the ADA, the Federal Aviation Act of 1958 empowered the Civil Aeronautics Board to regulate the interstate airline industry. Pursuant to this authority, the Board closely regulated air carriers, controlling, among other things, routes, rates, and services. See, e.g.,Western Air Lines, Inc. v. CAB, 347 U.S. 67, 74 S.Ct. 347, 98 L.Ed. 508 (1954); Federal Aviation Act of 1958, 72 Stat. 731. And since the Federal Aviation Act contained a saving provision preserving pre-existing statutory and common-law remedies, § 1106, id., at 798, air carriers were also regulated by the States. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). In 1978, however, Congress enacted the ADA, which sought to promote "efficiency, innovation, and low prices" in the airline industry through "maximum reliance on competitive market forces and on actual and potential competition." 49 U.S.C. §§ 40101(a)(6), (12)(A). While the ADA did not repeal the predecessor law's saving provision, it included a pre-emption provision in order to "ensure that the States would not undo federal deregulation with regulation of their own." Moralessupra, at 378, 112 S.Ct. 2031. In its current form, this provision states that "a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart." § 41713(b)(1). We have had two occasions to consider the ADA's pre-emptive reach. In Morales, we held that the ADA pre-empted the use of state consumer protection laws to regulate airline advertising. We recognized that the key phrase "related to" expresses a "broad pre-emptive purpose." 504 U.S., at 383, 112 S.Ct. 2031. Noting our interpretation of similar language in the pre-emption provision of the Employee Retirement and Income Security Act of 1974, 29 U.S.C. § 1144(a), we held that a claim "relat[es] to rates, routes, or services," within the meaning of the ADA, if the claim "ha[s] a connection with, or reference to, airline 'rates, routes, or services.' " 504 U.S., at 384, 112 S.Ct. 2031. The older saving provision, we concluded, did not undermine this conclusion. Id., at 384-385, 112 S.Ct. 2031. Subsequently, in American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), we considered the application of the ADA pre-emption provision to two types of claims concerning an airline's frequent flyer program: first, claims under the Illinois Consumer Fraud and Deceptive Business Practices Act challenging an airline's devaluation of earned miles (chiefly as the result of the imposition of "blackout dates" and limits on the number of seats available for customers wishing to obtain tickets by using those miles) and, second, breach of contract claims. We reaffirmed Morales ' broad interpretation of the ADA pre-emption provision and held that this provision barred the claims based on the Illinois statute but not the breach-of-contract claims. "[T]erms and conditions airlines offer and passengers accept," we wrote, "are privately ordered obligations and thus do not amount to a State's 'enact[ment] or enforce[ment] [of] any law, rule, regulation, standard, or other provision having the force and effect of law' within the meaning of [the ADA pre-emption provision]." 513 U.S., at 228-229, 115 S.Ct. 817. With this background in mind, we turn to the question whether the ADA pre-empts respondent's claim for breach of the implied covenant of good faith and fair dealing. B The first question we address is whether, as respondent now maintains, the ADA's pre-emption provision applies only to legislation enacted by a state legislature and regulations issued by a state administrative agency but not to a common-law rule like the implied covenant of good faith and fair dealing. We have little difficulty rejecting this argument. To begin, state common-law rules fall comfortably within the language of the ADA pre-emption provision. As noted above, the current version of this provision applies to state "law[s], regulation[s], or other provision[s] having the force and effect of law," 49 U.S.C. § 41713(b)(1). It is routine to call common-law rules "provisions." See, e.g., Madsen v. Women's Health Center, Inc., 512 U.S. 753, 765, n. 3, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994); United States v. Barnett, 376 U.S. 681, 689-700, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964); Brown v. United Airlines, Inc., 720 F.3d 60, 68 (C.A.1 2013) ("[W]hen read in context, the word 'provision' in the ADA preemption provision can most appropriately be construed to include common law"). And a common-law rule clearly has "the force and effect of law." In Wolens, we noted that this phrase is most naturally read to " 'refe[r] to binding standards of conduct that operate irrespective of any private agreement,' " 513 U.S., at 229, n. 5, 115 S.Ct. 817, and we see no basis for holding that such standards must be based on a statute or regulation as opposed to the common law. This understanding becomes even clearer when the original wording of the pre-emption provision is taken into account. When first enacted in 1978, this provision also applied to "rule[s]" and "standard[s]," and there surely can be no doubt that this formulation encompassed common-law rules. Indeed, we held in CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993), that virtually identical language in the Federal Railroad Safety Act of 1970 includes "[l]egal duties imposed ... by the common law." See also Riegel v. Medtronic, Inc., 552 U.S. 312, 324, 128 S.Ct. 999, 169 L.Ed.2d 892 (2008) (holding that a State's " 'requirements' " "includ[e] [the state's] common-law duties"). While "rule[s]" and "standard[s]" are not mentioned in the current version of the statute, this omission is the result of a recodification that was not meant to affect the provision's meaning. Those additional terms were deleted as part of a wholesale recodification of Title 49 in 1994, but Congress made it clear that this recodification did not effect any "substantive change." § 1(a), 108 Stat. 745. In arguing that common-law rules fall outside the scope of the ADA pre-emption provision, respondent relies on our decision in Sprietsma v. Mercury Marine, 537 U.S. 51, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002), which held that the Federal Boat Safety Act of 1971 did not pre-empt a common-law tort claim, but there are critical differences between the pre-emption provisions in the Boat Safety Act and the ADA. The Boat Safety Act provision applies only to "a law or regulation," 46 U.S.C. § 4306, whereas the ADA provision, as just explained, is much more broadly worded. In addition, the relationship between the ADA's pre-emption provision and the saving provision carried over from the prior law is also quite different. The Sprietsma decision placed substantial weight on the Boat Safety Act's saving provision, which was enacted at the same time as the pre-emption provision, but we have described the Federal Aviation Act saving clause as "a relic of the pre-ADA/no pre-emption regime." Morales, 504 U.S., at 385, 112 S.Ct. 2031. That provision applies to the entire, sprawling Federal Aviation Act, and not just to the ADA, and as we held in Morales, this "general 'remedies' saving clause cannot be allowed to supersede the specific substantive pre-emption provision." Ibid. See also Wolens,supra, at 245, 115 S.Ct. 817 (O'Connor, J., concurring in judgment in part and dissenting in part). For these reasons, respondent's interpretation of the ADA pre-emption provision cannot be squared with the provision's terms. Exempting common-law claims would also disserve the central purpose of the ADA. The Act eliminated federal regulation of rates, routes, and services in order to allow those aspects of air transportation to be set by market forces, and the pre-emption provision was included to prevent the States from undoing what the Act was meant to accomplish. Morales, supra, at 378, 112 S.Ct. 2031. What is important, therefore, is the effect of a state law, regulation, or provision, not its form, and the ADA's deregulatory aim can be undermined just as surely by a state common-law rule as it can by a state statute or regulation. See Medtronic, Inc., supra, at 325, 128 S.Ct. 999 (recognizing that state tort law that imposes certain requirements would "disrup[t] the federal scheme no less than state regulatory law to the same effect"). As the First Circuit has recognized, "[i]t defies logic to think that Congress would disregard real-world consequences and give dispositive effect to the form of a clear intrusion into a federally regulated industry." Brown, 720 F.3d, at 66-67. Finally, if all state common-law rules fell outside the ambit of the ADA's pre-emption provision, we would have had no need in Wolens to single out a subcategory of common-law claims, i.e., those based on the parties' voluntary undertaking, as falling outside that provision's coverage. Accordingly, we conclude that the phrase "other provision having the force and effect of law" includes common-law claims. C We must next determine whether respondent's breach of implied covenant claim "relates to" "rates, routes, or services." A claim satisfies this requirement if it has "a connection with, or reference to, airline" prices, routes, or services, Morales, supra, at 384, 112 S.Ct. 2031, and the claim at issue here clearly has such a connection. That claim seeks respondent's reinstatement in Northwest's frequent flyer program so that he can access the program's "valuable ... benefits," including "flight upgrades, accumulated mileage, loyalty program status or benefits on other airlines, and other advantages." App. 49-50. Like the frequent flyer program in Wolens, the Northwest program is connected to the airline's "rates" because the program awards mileage credits that can be redeemed for tickets and upgrades. See 513 U.S., at 226, 115 S.Ct. 817. When miles are used in this way, the rate that a customer pays, i.e., the price of a particular ticket, is either eliminated or reduced. The program is also connected to "services," i.e., access to flights and to higher service categories. Ibid. Respondent argues that his claim differs from the claims in Wolens because he "does not challenge access to flights and upgrades or the number of miles needed to obtain air tickets" but instead contests "the termination of his WorldPerks elite membership," Brief for Respondent 12, but this argument ignores respondent's reason for seeking reinstatement of his membership, i.e., to obtain reduced rates and enhanced services. Respondent's proffered distinction has no substance. Respondent and amici suggest that Wolens is not controlling because frequent flyer programs have fundamentally changed since the time of that decision. We are told that "most miles [are now] earned without consuming airline services" and are "spent without consuming airline services." Brief for State of California et al. 18 (emphasis deleted). But whether or not this alleged change might have some impact in a future case, it is not implicated here. In this case, respondent did not assert that he earned his miles from any activity other than taking flights or that he attempted to redeem miles for anything other than tickets and upgrades. See Tr. of Oral Arg. 47-48. III With these preliminary issues behind us, we turn to the central issue in this case, i.e., whether respondent's implied covenant claim is based on a state-imposed obligation or simply one that the parties voluntarily undertook. Petitioners urge us to hold that implied covenant claims are always pre-empted, and respondent suggests that such claims are generally not pre-empted, but the reasoning of Wolens neither dooms nor spares all such claims. While most States recognize some form of the good faith and fair dealing doctrine, it does not appear that there is any uniform understanding of the doctrine's precise meaning. "[T]he concept of good faith in the performance of contracts 'is a phrase without general meaning (or meanings) of its own.' " Tymshare, Inc. v. Covell, 727 F.2d 1145, 1152 (C.A.D.C.1984) (Scalia, J.) (quoting Summers, "Good Faith" in General Contract Law and the Sales Provisions of the Uniform Commercial Code, 54 Va. L.Rev. 195, 201 (1968)); see also Burton, Breach of Contract and the Common Law Duty to Perform in Good Faith, 94 Harv. L.Rev. 369, 371 (1980). Of particular importance here, while some States are said to use the doctrine "to effectuate the intentions of parties or to protect their reasonable expectations," ibid., other States clearly employ the doctrine to ensure that a party does not " 'violate community standards of decency, fairness, or reasonableness.' " Universal Drilling Co., LLC v. R & R Rig Service, LLC, 2012 WY 31, 37, 271 P.3d 987, 999;DDP Roofing Services, Inc. v. Indian River School Dist., 2010 WL 4657161, *3 (Del.Super.Ct., Nov. 16, 2010); Allworth v. Howard Univ., 890 A.2d 194, 201-202 (D.C.2006); Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Center Assocs., 182 N.J. 210, 224, 864 A.2d 387, 395-396 (2005); Harper v. Healthsource New Hampshire, 140 N.H. 770, 776, 674 A.2d 962, 965-966 (1996); Borys v. Josada Builders, Inc., 110 Ill.App.3d 29, 32-33, 65 Ill.Dec. 749, 441 N.E.2d 1263, 1265-1266 (1982); Restatement (Second) of Contracts § 205, Comment a (1979). See also Summers, The General Duty of Good Faith-Its Recognition and Conceptualization, 67 Cornell L.Rev. 810, 812 (1982). Whatever may be the case under the law of other jurisdictions, it seems clear that under Minnesota law, which is controlling here, see n. 1, supra, the implied covenant must be regarded as a state-imposed obligation.2 Respondent concedes that under Minnesota law parties cannot contract out of the covenant. See Tr. of Oral Arg. 33-34; see also In re Hennepin Cty. 1986 Recycling Bond Litigation, 540 N.W.2d 494, 502 (Minn.1995); Sterling Capital Advisors, Inc. v. Herzog, 575 N.W.2d 121, 125 (Minn.App.1998); Minnwest Bank Central v. Flagship Properties LLC, 689 N.W.2d 295, 303 (Minn.App.2004). And as a leading commentator has explained, a State's "unwillingness to allow people to disclaim the obligation of good faith ... shows that the obligation cannot be implied, but is law imposed." 3A A. Corbin, Corbin on Contracts § 654A, p. 88 (L. Cunningham & A. Jacobsen eds. Supp. 1994). When the law of a State does not authorize parties to free themselves from the covenant, a breach of covenant claim is pre-empted under the reasoning of Wolens. Another feature of Minnesota law provides an additional, independent basis for our conclusion. Minnesota law holds that the implied covenant applies to "every contract," In re Hennepin Cty., supra, at 502, with the notable exception of employment contracts. Hunt v. IBM Mid America Employees Fed. Credit Union, 384 N.W.2d 853, 857-858 (Minn.1986). The exception for employment contracts is based, in significant part, on "policy reasons," id., at 858, and therefore the decision not to exempt other types of contracts must be based on a policy determination, namely, that the "policy reasons" that support the rule for employment contracts do not apply (at least with the same force) in other contexts. When the application of the implied covenant depends on state policy, a breach of implied covenant claim cannot be viewed as simply an attempt to vindicate the parties' implicit understanding of the contract. For these reasons, the breach of implied covenant claim in this case cannot stand, but petitioners exhort us to go further and hold that all such claims, no matter the content of the law of the relevant jurisdiction, are pre-empted. If pre-emption depends on state law, petitioners warn, airlines will be faced with a baffling patchwork of rules, and the deregulatory aim of the ADA will be frustrated. But the airlines have means to avoid such a result. A State's implied covenant rules will escape pre-emption only if the law of the relevant State permits an airline to contract around those rules in its frequent flyer program agreement, and if an airline's agreement is governed by the law of such a State, the airline can specify that the agreement does not incorporate the covenant. While the inclusion of such a provision may impose transaction costs and presumably would not enhance the attractiveness of the program, an airline can decide whether the benefits of such a provision are worth the potential costs. Our holding also does not leave participants in frequent flyer programs without protection. The ADA is based on the view that the best interests of airline passengers are most effectively promoted, in the main, by allowing the free market to operate. If an airline acquires a reputation for mistreating the participants in its frequent flyer program (who are generally the airline's most loyal and valuable customers), customers can avoid that program and may be able to enroll in a more favorable rival program. Federal law also provides protection for frequent flyer program participants. Congress has given the Department of Transportation (DOT) the general authority to prohibit and punish unfair and deceptive practices in air transportation and in the sale of air transportation, 49 U.S.C. § 41712(a), and Congress has specifically authorized the DOT to investigate complaints relating to frequent flyer programs. See FAA Modernization and Reform Act of 2012, § 408(6), 126 Stat. 87. Pursuant to these provisions, the DOT regularly entertains and acts on such complaints.3 We note, finally, that respondent's claim of ill treatment by Northwest might have been vindicated if he had pursued his breach-of-contract claim after its dismissal by the District Court. Respondent argues that, contrary to the holding of the District Court, the frequent flyer agreement did not actually give Northwest unfettered discretion to terminate his membership in the program, see Brief for Respondent 20-21, and the United States makes a related argument, namely, that even if the agreement gave Northwest complete discretion with respect to a determination regarding abuse of the program, the agreement did not necessarily bar a claim asserting that membership was ended for an ulterior reason, such as an effort to cut costs. If respondent had appealed the dismissal of his breach-of-contract claim, he could have presented these arguments to the Court of Appeals, but he chose not to press that claim. He voluntarily dismissed the breach-of-contract claim and instead appealed only the breach of implied covenant claim, which we hold to be pre-empted. * * * Because respondent's implied covenant of good faith and fair dealing claim seeks to enlarge his contractual agreement with petitioners, we hold that 49 U.S.C. § 41713(b)(1) pre-empts the claim. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499. Applying California choice-of-law rules, the District Court held that Minnesota law applies because respondent "was a resident of Minneapolis, appears to fly in and out of Minnesota, and Northwest's principal place of business is Minnesota." App. to Pet. for Cert. 70. That determination was not challenged on appeal. Like Minnesota, some other States preclude a party from waiving the obligations of good faith and fair dealing. Hunter v. Wilshire Credit Corp., 927 So.2d 810, 813, n. 5 (Ala.2005); Smith v. Anchorage School Dist., 240 P.3d 834, 844 (Alaska 2010); Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No. 395, 201 Ariz. 474, 491, 38 P.3d 12, 29 (2002); Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 501, 505 (1992); Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434, 442 (Del.2005); Hill v. MedlanticHealth Care Group, 933 A.2d 314, 333 (D.C.2007); Chase Manhattan Bank, N.A. v. Keystone Distributors, Inc., 873 F.Supp. 808, 815 (S.D.N.Y.1994); Magruder Quarry & Co., LLC v. Briscoe, 83 S.W.3d 647, 652 (Mo.App.2002) ("When terms are present that directly nullify the implied covenants of good faith and reasonable efforts, ... the contract is void for lack of mutuality"); Gillette v. Hladky Constr., Inc., 2008 WY 134, ¶ 31, 196 P.3d 184, 196. But other States permit a party to contract out of the duties imposed by the implied covenant. Steiner v. Thexton, 48 Cal.4th 411, 419-420, 106 Cal.Rptr.3d 252, 226 P.3d 359, 365 (2010) (" ' "The general rule [regarding the covenant of good faith] is plainly subject to the exception that the parties may, by express provisions of the contract grant the right to engage in the very acts and conduct which would otherwise have been forbidden by an implied covenant of good faith and fair dealing" ' "); Shawver v. Huckleberry Estates, LLC, 140 Idaho 354, 362, 93 P.3d 685, 693 (2004); Farm Credit Servs. of Am. v. Dougan, 2005 S.D. 94, ¶ 10, 704 N.W.2d 24, 28. See DOT, Air Travel Consumer Report 44 (Feb. 2014), online at http:// www. dot. gov/ sites/ dot. dev/ files/ docs/ 2014_ February_ ATCR. pdf (as visited Mar. 31, 2014, and available in Clerk of Court's case file). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

J

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Thomas delivered the opinion of the Court. In 1981, the State of California amended its parole procedures to allow the Board of Prison Terms to decrease the frequency of parole suitability hearings under certain circumstances. This case presents the question whether the application of this amendment to prisoners who committed their crimes before it was enacted violates the Ex Post Facto Clause. We conclude that it does not. I California twice has convicted respondent Jose Ramon Morales of murder. In 1971, the body of respondent’s girlfriend, Gina Wallace, was found in an abandoned medical building. She had been shot in the head, neck, and abdomen; her right thumb had been amputated and her face slashed repeatedly. A bloody fingerprint near the body matched respondent’s. A jury found respondent guilty of first-degree murder, and he was sentenced to life in prison. While serving his sentence at the State Training Facility in Soledad, California, respondent met Lois Washabaugh, a 75-year-old woman who had begun visiting inmates after gaining an interest in prison reform. Ms. Washabaugh visited respondent on numerous occasions, and respondent kept in contact with her through correspondence. Respondent’s letters eventually expressed a romantic interest in Ms. Washabaugh, and the two were married some time after respondent’s release to a halfway house in April 1980. On July 4, 1980, Ms. Washabaugh left her home and told friends that she was moving to Los Angeles to live with her new husband. Three days later, police officers found a human hand on the Hollywood Freeway in Los Angeles. Ms. Washabaugh was reported missing at the end of July, and fingerprint identification revealed that the hand was hers. Her body was never recovered. Respondent was subsequently arrested and found in possession of Ms. Washabaugh’s car, purse, credit cards, and diamond rings. Respondent pleaded nolo contendere to the second-degree murder of Ms. Washabaugh. He was sentenced to a term of 15 years to life, but became eligible for parole beginning in 1990. As required by California law, see Cal. Penal Code Ann. § 3041 (West 1982), the Board of Prison Terms (Board) held a hearing on July 25, 1989, to determine respondent’s suitability for parole. California law required the Board to set a release date for respondent unless it found that “the public safety requires a more lengthy period of incarceration for this individual.” § 3041(b). The Board found respondent unsuitable for parole for numerous reasons, including the heinous, atrocious, and cruel nature of his offense; the mutilation of Ms. Washabaugh during or after the murder; respondent’s record of violence and assaultive behavior; and respondent’s commission of his second murder while on parole for his first. Supplemental App. to Pet. for Cert. 45. Under the law in place at the time respondent murdered Ms. Washabaugh, respondent would have been entitled to subsequent suitability hearings on an annual basis. 1977 Cal. Stats., ch. 165, §46. In 1981, however, the California Legislature had authorized the Board to defer subsequent suitability hearings for up to three years if the prisoner has been convicted of “more than one offense which involves the taking of a life” and if the Board “finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding.” Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982). In light of the considerations that led it to find respondent unsuitable for parole, and based on its conclusion that a longer period of observation was required before a parole release date could be projected, the Board determined that it was not reasonable to expect that respondent would be found suitable for parole in 1990 or 1991. Pursuant to the 1981 amendment, the Board scheduled the next hearing for 1992. Respondent then filed a federal habeas corpus petition in the United States District Court for the Central District of California, asserting that he was being held in custody in violation of the Federal Constitution. See 28 U. S. C. § 2254. Respondent argued that as applied to him, the 1981 amendment constituted an ex post facto law barred by Article I, § 10, of the United States Constitution. The District Court denied respondent’s habeas petition, but the United States Court of Appeals for the Ninth Circuit reversed. 16 F. 3d 1001 (1994). Because “a prisoner cannot be paroled without first having a parole hearing,” the Court of Appeals concluded that “any retrospective law making parole hearings less accessible would effectively increase the [prisoner’s] sentence and violate the ex post facto clause.” Id., at 1004. The Court of Appeals accordingly held that the Board was constitutionally constrained to provide respondent with annual parole suitability hearings, as required by the law in effect when he committed his crime. Id., at 1006. We granted certiorari, 512 U. S. 1287 (1994), and we now reverse. II Article I, §10, of the Constitution prohibits the States from passing any “ex post facto Law.” In Collins v. Youngblood, 497 U. S. 37, 41 (1990), we reaffirmed that the Ex Post Facto Clause incorporated “a term of art with an established meaning at the time of the framing of the Constitution.” In accordance with this original understanding, we have held that the Clause is aimed at laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts.” Id., at 43 (citing Calder v. Bull, 3 Dall. 386, 391-392 (1798) (opinion of Chase, J.); Beazell v. Ohio, 269 U. S. 167, 169-170 (1925)). The legislation at issue here effects no change in the definition of respondent’s crime. Instead, the question before us is whether the 1981 amendment to §3041.5 increases the “punishment” attached to respondent’s crime. In arguing that it does, respondent relies chiefly on a trilogy of cases holding that a legislature may not stiffen the “standard of punishment” applicable to crimes that have already been committed. See Lindsey v. Washington, 301 U. S. 397, 401 (1937); Miller v. Florida, 482 U. S. 423 (1987); Weaver v. Graham, 450 U. S. 24 (1981). In Lindsey, we established the proposition that the Constitution “forbids the application of any new punitive measure to a crime already consummated.” 301 U. S., at 401. The petitioners in Lindsey had been convicted of grand larceny, and the sentencing provision in effect at the time they committed their crimes provided for a maximum sentence of “not more than fifteen years.” Id., at 398. The applicable law called for sentencing judges to impose an indeterminate sentence up to whatever maximum they selected, so long as it did not exceed 15 years. Id., at 398, 400. Before the petitioners were sentenced, however, a new statute was passed that required the judge to sentence the petitioners to the 15-year maximum; under the new statute, the petitioners could secure an earlier release only through the grace of the parole board. Id., at 398-399. We held that the application of this statute to petitioners violated the Ex Post Facto Clause because “the measure of punishment prescribed by the later statute is more severe than that of the earlier.” Id., at 401. Weaver and Miller held that the Ex Post Facto Clause forbids the States to enhance the measure of punishment by altering the substantive “formula” used to calculate the applicable sentencing range. In Weaver, the petitioner had been sentenced to 15 years in prison for his crime of second-degree murder. Both at the time of his crime and at the time his sentence was imposed, state statutes provided a formula for mandatory reductions to the terms of all prisoners who complied with certain prison regulations and state laws. The statute that the petitioner challenged and that we invalidated retroactively reduced the amount of “gain time” credits available to prisoners under this formula. Though the statute preserved the possibility that some prisoners might win back these credits if they convinced prison officials to exercise their discretion to find that they were especially deserving, see 450 U. S., at 34, n. 18, we found that it effectively eliminated the lower end of the possible range of prison terms. Id., at 26-27, 31-33. The statute at issue in Miller contained a similar defect. The Florida sentencing scheme had established “presumptive sentencing ranges” for various offenses, which sentencing judges were required to follow in the absence of “clear and convincing reasons” for a departure. At the time that the petitioner in Miller committed his crime, his presumptive sentencing range would have been 3V2 to 4V2 years. Before his sentencing, however, the state legislature altered the formula for establishing the presumptive sentencing range for certain sexual offenses by increasing the “primary offense points” assigned to those crimes. As a result, petitioner’s presumptive, range jumped to 5V2 to 7 years. We held that the resulting increase in the “quantum of punishment” violated the Ex Post Facto Clause. 482 U. S., at 433-434. Respondent insists that the California amendment before us is indistinguishable from the legislation at issue in Lindsey, Weaver, and Miller, and he contends that those cases control this one. We disagree. Both before and after the 1981 amendment, California punished the offense of second-degree murder with an indeterminate sentence of “confinement in the state prison for a term of 15 years to life.” Cal. Penal Code Ann. §190 (West 1982). The amendment also left unchanged the substantive formula for securing any reductions to this sentencing range. Thus, although 15 years was the formal “minimum” term of confinement, see ibid., respondent was able to secure a one-third “credit” or reduction in this minimum by complying with prison rules and regulations, see §2931. The amendment had no effect on the standards for fixing a prisoner’s initial date of “eligibility” for parole, see In re Jackson, 39 Cal. 3d 464, 476, 703 P. 2d 100, 108 (1985), or for determining his “suitability” for parole and setting his release date, see Cal. Penal Code Ann. §§3041, 3041.5 (West 1982). The 1981 amendment made only one change: It introduced the possibility that after the initial parole hearing, the Board would not have to hold another hearing the very next year, or the year after that, if it found no reasonable probability that respondent would be deemed suitable for parole in the interim period. § 3041.5(b)(2). In contrast to the laws at issue in Lindsey, Weaver, and Miller (which had the purpose and effect of enhancing the range of available prison terms, see Miller, supra, at 433-434), the evident focus of the California amendment was merely “ ‘to relieve the [Board] from the costly and time-consuming responsibility of scheduling parole hearings’” for prisoners who have no reasonable chance of being released. In re Jackson, supra, at 473, 703 P. 2d, at 106 (quoting legislative history). Rather than changing the sentencing range applicable to covered crimes, the 1981 amendment simply “alters the method to be followed” in fixing a parole release date under identical substantive standards. See Miller, supra, at 433 (contrasting adjustment to presumptive sentencing range with change in “the method to be followed in determining the appropriate sentence”); see also Dobbert v. Florida, 432 U. S. 282, 293-294 (1977) (contrasting change in the “quantum of punishment” with statute that merely “altered the methods employed in determining whether the death penalty was to be imposed”). Ill Respondent nonetheless urges us to hold that the Ex Post Facto Clause forbids any legislative change that has any conceivable risk of affecting a prisoner’s punishment. In his view, there is “no principled way to determine how significant a risk of enhanced confinement is to be tolerated.” Brief for Respondent 39. Our cases have never accepted this expansive view of the Ex Post Facto Clause, and we will not endorse it here. Respondent’s approach would require that we invalidate any of a number of minor (and perhaps inevitable) mechanical changes that might produce some remote risk of impact on a prisoner’s expected term of confinement. Under respondent’s approach, the judiciary would be charged under the Ex Post Facto Clause with the micromanagement of an endless array of legislative adjustments to parole and sentencing procedures, including such innocuous adjustments as changes to the membership of the Board of Prison Terms, restrictions on the hours that prisoners may use the prison law library, reductions in the duration of the parole hearing, restrictions on the time allotted for a convicted defendant’s right of allocution before a sentencing judge, and page limitations on a defendant’s objections to presentence reports or on documents seeking a pardon from the governor. These and countless other changes might create some speculative, attenuated risk of affecting a prisoner’s actual term of confinement by making it more difficult for him to make a persuasive case for early release, but that fact alone cannot end the matter for ex post facto purposes. Indeed, contrary to the approach advocated by respondent, we have long held that the question of what legislative adjustments “will be held to be of sufficient moment to transgress the constitutional prohibition” must be a matter of “degree.” Beazell, 269 U. S., at 171. In evaluating the constitutionality of the 1981 amendment, we must determine whether it produces a sufficient risk of increasing the measure of punishment attached to the covered crimes. We have previously declined to articulate a single “formula” for identifying those legislative changes that have a sufficient effect on substantive crimes or punishments to fall within the constitutional prohibition, see ibid., and we have no occasion to do so here. The amendment creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes, and such conjectural effects are insufficient under any threshold we might establish under the Ex Post Facto Clause. See Dobbert, supra, at 294 (refusing to accept “speculation” that the effective punishment under a new statutory scheme would be “more onerous” than under the old one). First, the amendment applies only to a class of prisoners for whom the likelihood of release on parole is quite remote. The amendment enabled the Board to extend the time between suitability hearings only for those prisoners who have been convicted of “more than one offense which involves the taking of a life.” Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982). The California Supreme Court has noted that about 90% of all prisoners are found unsuitable for parole at the initial hearing, while 85% are found unsuitable at the second and subsequent hearings. In re Jackson, 39 Cal. 3d, at 473, 703 P. 2d, at 105. In light of these numbers, the amendment “was seen as a means ‘to relieve the [Board] from the costly and time-consuming responsibility of scheduling parole hearings for prisoners who have no chance of being released.’” Ibid, (quoting legislative history). Second, the Board’s authority under the amendment is carefully tailored to that end. The amendment has no effect on the date of any prisoner’s initial parole suitability hearing; it affects the timing only of subsequent hearings. Accordingly, the amendment has no effect on any prisoner unless the Board has first concluded, after a hearing, not only that the prisoner is unsuitable for parole, but also that “it. is not reasonable to expect that parole would be granted at a hearing during the following years.” Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982). “This is no arbitrary decision,” Morris v. Castro, 166 Cal. App. 3d 33, 38, 212 Cal. Rptr. 299, 302 (1985); the Board must conduct “a full hearing and review” of all relevant facts, ibid., and state the bases for its finding. Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982). Though California law is not entirely clear on this point, the reliability of the Board’s determination may also be enhanced by the possibility of an administrative appeal. See 15 Cal. Admin. Code § 2050 (1994). Moreover, the Board retains the authority to tailor the frequency of subsequent suitability hearings to the particular circumstances of the individual prisoner. The default requirement is an annual hearing, but the Board may defer the next hearing up to two years more depending on the circumstances. Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982). Thus, a mass murderer who has participated in repeated violent crimes both in prison and while on parole could perhaps expect a 3-year delay between suitability hearings, while a prisoner who poses a lesser threat to the “public safety,” see § 3041(b), might receive only a 2-year delay. In light of the particularized findings required under the amendment and the broad discretion given to the Board, the narrow class of prisoners covered by the amendment cannot reasonably expect that their prospects for early release on parole would be enhanced by the opportunity of annual hearings. For these prisoners, the amendment simply allows the Board to avoid the futility of going through the motions of reannouncing its denial of parole suitability on a yearly basis. Respondent suggests that there is some chance that the amendment might nevertheless produce an increased term of confinement for some prisoners who might experience a change of circumstances that could render them suitable for parole during the period between their hearings. Brief for Respondent 39. Respondent fails, however, to provide any support for his speculation that the multiple murderers and other prisoners subject to the amendment might experience an unanticipated change that is sufficiently monumental to alter their suitability for release on parole. Even if we assume the possibility of such a change, moreover, there is no reason to conclude that the amendment will have any effect on any prisoner’s actual term of confinement, for the current record provides no basis for concluding that a prisoner who experiences a drastic change of circumstances would be precluded from seeking an expedited hearing from the Board. Indeed, the California Supreme Court has suggested that under the circumstances hypothesized by respondent “the Board could advance the suitability hearing,” In re Jackson, supra, at 475, 703 P. 2d, at 107, and the California Department of Corrections indicates in its brief that the Board’s “practice” is to “review for merit any communication from an inmate asking for an earlier suitability hearing,” Reply Brief for Petitioner 3, n. 1. If the Board’s decision to postpone the hearing is subject to administrative appeal, the controlling regulations also seem to preserve the possibility of a belated appeal. See 15 Cal. Admin. Code §2050 (1994) (time limits for administrative appeals “are directory only and may be extended”). An expedited hearing by the Board — either on its own volition or pursuant to an order entered on an administrative appeal — would remove any possibility of harm even under the hypothetical circumstances suggested by respondent. Even if a prisoner were denied an expedited hearing, there is no reason to think that such postponement would extend any prisoner’s actual period of confinement. According to the California Supreme Court, the possibility of immediate release after a finding of suitability for parole is largely “theoretica[l],” In re Jackson, 39 Cal. 3d, at 474, 703 P. 2d, at 106; in many cases, the prisoner’s parole release date comes at least several years after a finding of suitability. To the extent that these cases are representative, it follows that “the 'practical effect’ of a hearing postponement is not significant.” Id., at 474, 703 P. 2d, at 106-107. This is because the Board is bound by statute to consider “any sentencing information relevant to the setting of parole release dates” with an eye toward establishing “uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public.” Cal. Penal Code Ann. § 3041(a) (West 1982). Under these standards, the fact that a prisoner had been “suitable” for parole prior to the date of the hearing certainly would be “relevant” to the Board’s decision in setting an actual release date, and the Board retains the discretion to expedite the release date of such a prisoner. Thus, a prisoner who could show that he was “suitable” for parole two years prior to such a finding by the Board might well be entitled to secure a release date that reflects that fact. Such a prisoner’s ultimate date of release would be entirely unaffected by the change in the timing of suitability hearings. IV Given these circumstances, we conclude that the California legislation at issue creates only the most speculative and attenuated risk of increasing the measure of punishment attached to the covered crimes. The Ninth Circuit’s judgment that the amendment violates the Ex Post Facto Clause is accordingly reversed. It is so ordered. The statute was again amended in 1990 to allow the Board the alternative of deferring hearings for five years if the prisoner has been convicted of more than two murders, Cal. Penal Code Ann. § 3041.5(b)(2)(C) (West Supp. 1994), 1990 Cal. Stats., ch. 1053, and in 1994 to extend that alternative to prisoners convicted of even a single murder, 1994 Cal. Stats., ch. 560. The 5-year deferral applies, however, “only to offenses committed before July 1, 1977, or on or after January 1, 1991,” 1990 Cal. Stats., ch. 1053, and thus appears to have no application to respondent, whose most recent crime was committed in 1980. During the pendency of this action, respondent appeared before the Board for his 1992 suitability hearing. The Board again found respondent unsuitable and again determined that it was not reasonable to expect that he would be found suitable for parole at the following two annual hearings. Respondent’s next suitability hearing was then set for 1995. Our opinions in Lindsey, Weaver, and Miller suggested that enhancements to the measure of criminal punishment fall within the ex post facto prohibition because they operate to the “disadvantage” of covered offenders. See Lindsey, 301 U. S., at 401; Weaver, 450 U. S., at 29; Miller, 482 U. S., at 433. But that language was unnecessary to the results in those cases and is inconsistent with the framework developed in Collins v. Youngblood, 497 U. S. 37, 41 (1990). After Collins, the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of “disadvantage,” nor, as the dissent seems to suggest, on whether an amendment affects a prisoner’s “opportunity to take advantage of provisions for early release,” see post, at 518, but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable. The dissent proposes a line between those measures that deprive prisoners of a parole hearing and those that “make it more difficult for prisoners to obtain release.” Post, at 524. But this arbitrary line has absolutely no basis in the Constitution. If a delay in parole hearings raises ex post facto concerns, it is because that delay effectively increases a prisoner’s term of confinement, and not because the hearing itself has independent constitutional significance. Other adjustments to mechanisms surrounding the sentencing process should be evaluated under the same standard. Contrary to the dissent’s suggestion, see post, at 519, we express no view as to the constitutionality of any of a number of other statutes that might alter the timing of parole hearings under circumstances different from those present here. The dissent suggests that any “speculation” as to the effect of the amendment on prison terms should “ru[n] in the other direction,” post, at 525, but this approach effectively shifts to the State the burden of persuasion as to respondent’s ex post facto claim. Not surprisingly, the dissent identifies no support for its attempt to undo the settled rule that a claimant must bear the risk of nonpersuasion as to the existence of an alleged constitutional violation. Although we have held that a party asserting an ex post facto claim need not carry the burden of showing that he would have been sentenced to a lesser term under the measure or range of punishments in place under the previous statutory scheme, see Lindsey v. Washington, 301 U. S., at 401, we have never suggested that the challenging party may escape the ultimate burden of establishing that the measure of punishment itself has changed. Indeed, elimination of that burden would eviscerate the view of the Ex Post Facto Clause that we reaffirmed in Collins. Just as “[t]he inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed,” Gibson v. Mississippi, 162 U. S. 565, 590 (1896), neither does it require that the sentence be carried out under the identical legal regime that previously prevailed. The dissent mischaracterizes our analysis in suggesting that we somehow have concocted a “reduced” standard of judicial scrutiny for application to “a narrow group as unpopular ... as multiple murderers.” Post, at 522. The ex post facto standard we apply today is constant: It looks to whether a given legislative change has the prohibited effect of altering the definition of crimes or increasing punishments. Our application of that standard necessarily considers a number of factors — including, in this case, that the 1981 amendment targets a group of prisoners whom the California Legislature deemed less likely than others to secure early release on parole — but the constitutional standard is neither “enhanced” nor “reduced” on the basis of societal animosity toward multiple murderers. Cf. ibid. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice THOMAS delivered the opinion of the Court. The Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., provides that an employee may bring an action to recover damages for specified violations of the Act on behalf of himself and other " similarly situated" employees. We granted certiorari to resolve whether such a case is justiciable when the lone plaintiff's individual claim becomes moot. 567 U.S. ----, 133 S.Ct. 26, 183 L.Ed.2d 674 (2012). We hold that it is not justiciable. I The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees that cannot be modified by contract. Section 16(b) of the FLSA, 52 Stat. 1060, as amended, 29 U.S.C. § 216(b), gives employees the right to bring a private cause of action on their own behalf and on behalf of "other employees similarly situated" for specified violations of the FLSA. A suit brought on behalf of other employees is known as a "collective action." See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169-170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). In 2009, respondent, who was formerly employed by petitioners as a registered nurse at Pennypack Center in Philadelphia, Pennsylvania, filed a complaint on behalf of herself and "all other persons similarly situated." App. 115-116. Respondent alleged that petitioners violated the FLSA by automatically deducting 30 minutes of time worked per shift for meal breaks for certain employees, even when the employees performed compensable work during those breaks. Respondent, who remained the sole plaintiff throughout these proceedings, sought statutory damages for the alleged violations. When petitioners answered the complaint, they simultaneously served upon respondent an offer of judgment under Federal Rule of Civil Procedure 68. The offer included $7,500 for alleged unpaid wages, in addition to "such reasonable attorneys' fees, costs, and expenses... as the Court may determine." Id., at 77. Petitioners stipulated that if respondent did not accept the offer within 10 days after service, the offer would be deemed withdrawn. After respondent failed to respond in the allotted time period, petitioners filed a motion to dismiss for lack of subject-matter jurisdiction. Petitioners argued that because they offered respondent complete relief on her individual damages claim, she no longer possessed a personal stake in the outcome of the suit, rendering the action moot. Respondent objected, arguing that petitioners were inappropriately attempting to "pick off" the named plaintiff before the collective-action process could unfold. Id., at 91. The District Court found that it was undisputed that no other individuals had joined respondent's suit and that the Rule 68 offer of judgment fully satisfied her individual claim. It concluded that petitioners' Rule 68 offer of judgment mooted respondent's suit, which it dismissed for lack of subject-matter jurisdiction. The Court of Appeals reversed. 656 F.3d 189 (C.A.3 2011). The court agreed that no other potential plaintiff had opted into the suit, that petitioners' offer fully satisfied respondent's individual claim, and that, under its precedents, whether or not such an offer is accepted, it generally moots a plaintiff's claim. Id., at 195. But the court nevertheless held that respondent's collective action was not moot. It explained that calculated attempts by some defendants to "pick off" named plaintiffs with strategic Rule 68 offers before certification could short circuit the process, and, thereby, frustrate the goals of collective actions. Id., at 196-198. The court determined that the case must be remanded in order to allow respondent to seek "conditional certification" in the District Court. If respondent were successful, the District Court was to relate the certification motion back to the date on which respondent filed her complaint. Ibid. II Article III, § 2, of the Constitution limits the jurisdiction of federal courts to "Cases" and "Controversies," which restricts the authority of federal courts to resolving " 'the legal rights of litigants in actual controversies,' " Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (quoting Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885) ). In order to invoke federal-court jurisdiction, a plaintiff must demonstrate that he possesses a legally cognizable interest, or " 'personal stake,' " in the outcome of the action. See Camreta v. Greene, 563 U.S. ----, ----, 131 S.Ct. 2020, 2028, 179 L.Ed.2d 1118 (2011) (quoting Summers v. Earth Island Institute, 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ). This requirement ensures that the Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual and concrete disputes, the resolutions of which have direct consequences on the parties involved. A corollary to this case-or-controversy requirement is that " 'an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.' " Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) ). If an intervening circumstance deprives the plaintiff of a "personal stake in the outcome of the lawsuit," at any point during litigation, the action can no longer proceed and must be dismissed as moot. Lewis v. Continental Bank Corp., 494 U.S. 472, 477-478, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (internal quotation marks omitted). In the proceedings below, both courts concluded that petitioners' Rule 68 offer afforded respondent complete relief on-and thus mooted-her FLSA claim. See 656 F.3d, at 201 ; No. 09-5782, 2010 WL 2038676, *4 (E.D.Pa., May 19, 2010). Respondent now contends that these rulings were erroneous, because petitioners' Rule 68 offer lapsed without entry of judgment. Brief for Respondent 12-16. The United States, as amicus curiae, similarly urges the Court to hold that petitioners' unaccepted offer did not moot her FLSA claim and to affirm the Court of Appeals on this basis. Brief for United States 10-15. While the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiff's claim is sufficient to render the claim moot, we do not reach this question, or resolve the split, because the issue is not properly before us. The Third Circuit clearly held in this case that respondent's individual claim was moot. 656 F.3d, at 201. Acceptance of respondent's argument to the contrary now would alter the Court of Appeals' judgment, which is impermissible in the absence of a cross-petition from respondent. See Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 364, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994) ; Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 119, n. 14, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985). Moreover, even if the cross-petition rule did not apply, respondent's waiver of the issue would still prevent us from reaching it. In the District Court, respondent conceded that "[a]n offer of complete relief will generally moot the [plaintiff's] claim, as at that point the plaintiff retains no personal interest in the outcome of the litigation." App. 93; 2010 WL 2038676, at *4. Respondent made a similar concession in her brief to the Court of Appeals, see App. 193, and failed to raise the argument in her brief in opposition to the petition for certiorari. We, therefore, assume, without deciding, that petitioners' Rule 68 offer mooted respondent's individual claim. See Baldwin v. Reese, 541 U.S. 27, 34, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). III We turn, then, to the question whether respondent's action remained justiciable based on the collective-action allegations in her complaint. A straightforward application of well-settled mootness principles compels our answer. In the absence of any claimant's opting in, respondent's suit became moot when her individual claim became moot, because she lacked any personal interest in representing others in this action. While the FLSA authorizes an aggrieved employee to bring an action on behalf of himself and "other employees similarly situated," 29 U.S.C. § 216(b), the mere presence of collective-action allegations in the complaint cannot save the suit from mootness once the individual claim is satisfied. In order to avoid this outcome, respondent relies almost entirely upon cases that arose in the context of Federal Rule of Civil Procedure 23 class actions, particularly United States Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) ; Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) ; and Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). But these cases are inapposite, both because Rule 23 actions are fundamentally different from collective actions under the FLSA, see Hoffmann-La Roche Inc., 493 U.S., at 177-178, 110 S.Ct. 482 (SCALIA, J., dissenting), and because these cases are, by their own terms, inapplicable to these facts. It follows that this action was appropriately dismissed as moot. A Respondent contends that she has a sufficient personal stake in this case based on a statutorily created collective-action interest in representing other similarly situated employees under § 216(b). Brief for Respondent 47-48. In support of her argument, respondent cites our decision in Geraghty, which in turn has its roots in Sosna. Neither case supports her position. In Sosna, the Court held that a class action is not rendered moot when the named plaintiff's individual claim becomes moot after the class has been duly certified. 419 U.S., at 399, 95 S.Ct. 553. The Court reasoned that when a district court certifies a class, "the class of unnamed persons described in the certification acquire[s] a legal status separate from the interest asserted by [the named plaintiff]," with the result that a live controversy may continue to exist, even after the claim of the named plaintiff becomes moot. Id., at 399-402, 95 S.Ct. 553.Geraghty narrowly extended this principle to denials of class certification motions. The Court held that where an action would have acquired the independent legal status described in Sosna but for the district court's erroneous denial of class certification, a corrected ruling on appeal "relates back" to the time of the erroneous denial of the certification motion. 445 U.S., at 404, and n. 11, 100 S.Ct. 1202. Geraghty is inapposite, because the Court explicitly limited its holding to cases in which the named plaintiff's claim remains live at the time the district court denies class certification. See id., at 407, n. 11, 100 S.Ct. 1202. Here, respondent had not yet moved for "conditional certification" when her claim became moot, nor had the District Court anticipatorily ruled on any such request. Her claim instead became moot prior to these events, foreclosing any recourse to Geraghty. There is simply no certification decision to which respondent's claim could have related back. More fundamentally, essential to our decisions in Sosna and Geraghty was the fact that a putative class acquires an independent legal status once it is certified under Rule 23. Under the FLSA, by contrast, "conditional certification" does not produce a class with an independent legal status, or join additional parties to the action. The sole consequence of conditional certification is the sending of court-approved written notice to employees, see Hoffmann-La Roche Inc., supra, at 171-172, 110 S.Ct. 482, who in turn become parties to a collective action only by filing written consent with the court, § 216(b). So even if respondent were to secure a conditional certification ruling on remand, nothing in that ruling would preserve her suit from mootness. B Respondent also advances an argument based on a separate, but related, line of cases in which the Court held that an "inherently transitory" class-action claim is not necessarily moot upon the termination of the named plaintiff's claim. Like our decision in Geraghty, this line of cases began with Sosna and is similarly inapplicable here. After concluding that the expiration of a named plaintiff's claim following certification does not moot the class action, Sosna suggested that, where a named plaintiff's individual claim becomes moot before the district court has an opportunity to rule on the certification motion, and the issue would otherwise evade review, the certification might "relate back" to the filing of the complaint. 419 U.S., at 402, n. 11, 95 S.Ct. 553. The Court has since held that the relation-back doctrine may apply in Rule 23 cases where it is "certain that other persons similarly situated" will continue to be subject to the challenged conduct and the claims raised are "'so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires.' " County of Riverside v. McLaughlin, 500 U.S. 44, 52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (quoting Geraghty,supra, at 399, 100 S.Ct. 1202), in turn citing Gerstein v. Pugh, 420 U.S. 103, 110, n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Invoking this doctrine, respondent argues that defendants can strategically use Rule 68 offers to "pick off" named plaintiffs before the collective-action process is complete, rendering collective actions "inherently transitory" in effect. Brief for Respondent 37. Our cases invoking the "inherently transitory" relation-back rationale do not apply. The "inherently transitory" rationale was developed to address circumstances in which the challenged conduct was effectively unreviewable, because no plaintiff possessed a personal stake in the suit long enough for litigation to run its course. A plaintiff might seek, for instance, to bring a class action challenging the constitutionality of temporary pretrial detentions. In doing so, the named plaintiff would face the considerable challenge of preserving his individual claim from mootness, since pretrial custody likely would end prior to the resolution of his claim. See Gerstein, supra. To address this problem, the Court explained that in cases where the transitory nature of the conduct giving rise to the suit would effectively insulate defendants' conduct from review, certification could potentially "relate back" to the filing of the complaint. Id., at 110, n. 11, 95 S.Ct. 854; McLaughlin,supra, at 52, 111 S.Ct. 1661. But this doctrine has invariably focused on the fleeting nature of the challenged conduct giving rise to the claim, not on the defendant's litigation strategy. See, e.g., Swisher v. Brady, 438 U.S. 204, 214, n. 11, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978) ; Spencer v. Kemna, 523 U.S. 1, 17-18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). In this case, respondent's complaint requested statutory damages. Unlike claims for injunctive relief challenging ongoing conduct, a claim for damages cannot evade review; it remains live until it is settled, judicially resolved, or barred by a statute of limitations. Nor can a defendant's attempt to obtain settlement insulate such a claim from review, for a full settlement offer addresses plaintiff's alleged harm by making the plaintiff whole. While settlement may have the collateral effect of foreclosing unjoined claimants from having their rights vindicated in respondent's suit, such putative plaintiffs remain free to vindicate their rights in their own suits. They are no less able to have their claims settled or adjudicated following respondent's suit than if her suit had never been filed at all. C Finally, respondent argues that the purposes served by the FLSA's collective-action provisions-for example, efficient resolution of common claims and lower individual costs associated with litigation-would be frustrated by defendants' use of Rule 68 to "pick off" named plaintiffs before the collective-action process has run its course. Both respondent and the Court of Appeals purported to find support for this position in our decision in Roper, 445 U.S., at 339, 100 S.Ct. 1166. In Roper, the named plaintiffs' individual claims became moot after the District Court denied their motion for class certification under Rule 23 and subsequently entered judgment in their favor, based on the defendant bank's offer of judgment for the maximum recoverable amount of damages, in addition to interest and court costs. Id., at 329-330, 100 S.Ct. 1166. The Court held that even though the District Court had entered judgment in the named plaintiffs' favor, they could nevertheless appeal the denial of their motion to certify the class. The Court found that, under the particular circumstances of that case, the named plaintiffs possessed an ongoing, personal economic stake in the substantive controversy-namely, to shift a portion of attorney's fees and expenses to successful class litigants. ID., AT 332-334, and n. 6, 100 s.ct. 1166. only then, in dicTa, did the Court underscore the importance of a district court's class certification decision and observe that allowing defendants to " 'pic[k] off' " party plaintiffs before an affirmative ruling was achieved "would frustrate the objectives of class actions." Id., at 339, 100 S.Ct. 1166. Roper's holding turned on a specific factual finding that the plaintiffs' possessed a continuing personal economic stake in the litigation, even after the defendants' offer of judgment. Id., at 336, 100 S.Ct. 1166. As already explained, here, respondent conceded that petitioners' offer "provided complete relief on her individual claims," Brief in Opposition i, and she failed to assert any continuing economic interest in shifting attorney's fees and costs to others. Moreover, Roper's dictum was tethered to the unique significance of certification decisions in class-action proceedings. 445 U.S., at 339, 100 S.Ct. 1166. Whatever significance "conditional certification" may have in § 216(b) proceedings, it is not tantamount to class certification under Rule 23. * * * The Court of Appeals concluded that respondent's individual claim became moot following petitioners' Rule 68 offer of judgment. We have assumed, without deciding, that this is correct. Reaching the question on which we granted certiorari, we conclude that respondent has no personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness. Respondent's suit was, therefore, appropriately dismissed for lack of subject-matter jurisdiction. The judgment of the Court of Appeals for the Third Circuit is reversed. It is so ordered. Justice KAGAN, with whom Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR join, dissenting. The Court today resolves an imaginary question, based on a mistake the courts below made about this case and others like it. The issue here, the majority tells us, is whether a "'collective action' " brought under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., "is justiciable when the lone plaintiff's individual claim becomes moot." Ante, at 1526. Embedded within that question is a crucial premise: that the individual claim has become moot, as the lower courts held and the majority assumes without deciding. But what if that premise is bogus? What if the plaintiff's individual claim here never became moot? And what if, in addition, no similar claim for damages will ever become moot? In that event, the majority's decision -founded as it is on an unfounded assumption-would have no real-world meaning or application. The decision would turn out to be the most one-off of one-offs, explaining only what (the majority thinks) should happen to a proposed collective FLSA action when something that in fact never happens to an individual FLSA claim is errantly thought to have done so. That is the case here, for reasons I'll describe. Feel free to relegate the majority's decision to the furthest reaches of your mind: The situation it addresses should never again arise. Consider the facts of this case, keeping an eye out for anything that would render any part of it moot. Respondent Laura Symczyk brought suit under a provision of the FLSA, 29 U.S.C. § 216(b), "on behalf of herself and others similarly situated." App. 21. Her complaint alleged that her former employer, petitioner Genesis Healthcare Corporation (Genesis), violated the FLSA by treating 30 minutes of every shift as an unpaid meal break, even when an employee worked during that time. Genesis answered the complaint and simultaneously made an offer of judgment under Federal Rule of Civil Procedure 68. That settlement proposal covered only Symczyk's individual claim, to the tune of $7,500 in lost wages. The offer, according to its terms, would "be deemed withdrawn" if Symczyk did not accept it within 10 days. App. 79. That deadline came and went without any reply. The case then proceeded in the normal fashion, with the District Court setting a schedule for discovery. Pause here for a moment to ask whether you've seen anything yet that would moot Symczyk's individual claim. No? Neither have I. Nevertheless, Genesis moved to dismiss Symczyk's suit on the ground that it was moot. The supposed logic went like this: We (i.e., Genesis) offered Symczyk complete relief on her individual damages claim; she "effectively reject[ed] the [o]ffer" by failing to respond; because she did so, she "no longer has a personal stake or legally cognizable interest in the outcome of this action"; accordingly, the court "should dismiss her claims." Id., at 67. Relying on Circuit precedent, the District Court agreed; it dismissed the case for lack of jurisdiction-without awarding Symczyk any damages or other relief-based solely on the unaccepted offer Genesis had made. See App. to Pet. for Cert. 35 (citing Weiss v. Regal Collections, 385 F.3d 337, 340 (C.A.3 2004) ). And finally, the Court of Appeals for the Third Circuit concurred that Genesis's offer mooted Symczyk's individual claim (though also holding that she could still proceed with a collective action). See 656 F.3d 189 (2011). That thrice-asserted view is wrong, wrong, and wrong again. We made clear earlier this Term that "[a]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot." Chafin v. Chafin, 568 U.S. ----, ----, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2012) (internal quotation marks omitted). "[A] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party." Ibid. (internal quotation marks omitted). By those measures, an unaccepted offer of judgment cannot moot a case. When a plaintiff rejects such an offer-however good the terms-her interest in the lawsuit remains just what it was before. And so too does the court's ability to grant her relief. An unaccepted settlement offer-like any unaccepted contract offer-is a legal nullity, with no operative effect. As every first-year law student learns, the recipient's rejection of an offer " leaves the matter as if no offer had ever been made." Minneapolis & St. Louis R. Co. v. Columbus Rolling Mill, 119 U.S. 149, 151, 7 S.Ct. 168, 30 L.Ed. 376 (1886). Nothing in Rule 68 alters that basic principle; to the contrary, that rule specifies that "[a]n unaccepted offer is considered withdrawn." Fed. Rule Civ. Proc. 68(b). So assuming the case was live before-because the plaintiff had a stake and the court could grant relief-the litigation carries on, unmooted. For this reason, Symczyk's individual claim was alive and well when the District Court dismissed her suit. Recall: Genesis made a settlement offer under Rule 68 ; Symczyk decided not to accept it; after 10 days, it expired and the suit went forward. Symczyk's individual stake in the lawsuit thus remained what it had always been, and ditto the court's capacity to grant her relief. After the offer lapsed, just as before, Symczyk possessed an unsatisfied claim, which the court could redress by awarding her damages. As long as that remained true, Symczyk's claim was not moot, and the District Court could not send her away empty-handed. So a friendly suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theory. And a note to all other courts of appeals: Don't try this at home. To this point, what I have said conflicts with nothing in the Court's opinion. The majority does not attempt to argue, à la the Third Circuit, that the unaccepted settlement offer mooted Symczyk's individual damages claim. Instead, the majority hangs its hat on a finding of waiver. See ante, at 1528, 1532. The majority notes-correctly-that Symczyk accepted the Third Circuit's rule in her briefs below, and also failed to challenge it in her brief in opposition to the petition for certiorari; she contested it first in her merits brief before this Court. That enables the majority to "assume, without deciding," the mootness of Symczyk's individual claim and reach the oh-so-much-more-interesting question relating to her proposed collective action. Ante, at 1528. But as this Court noted in a similar case, "assum[ing] what the facts will show to be ridiculous" about a predicate question-just because a party did not think to challenge settled Circuit precedent-runs "a risk that ought to be avoided." Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 382, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995). The question Symczyk now raises ("Did an unaccepted settlement offer moot my individual FLSA claim?") is logically prior to-and thus inextricably intertwined with-the question the majority rushes to resolve ("If an unaccepted settlement offer mooted Symczyk's individual FLSA claim, could a court proceed to consider her proposed collective action?"). Indeed, the former is so much part and parcel of the latter that the question Genesis presented for our review-and on which we granted certiorari-actually looks more like Symczyk's than like the majority's. Genesis asked: "Whether a case becomes moot... when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims." Pet. for Cert. i. Symczyk, of course, would respond "no," because merely receiving an offer does not moot any claim. The majority's refusal to consider that obviously correct answer impedes "intelligent resolution of the question presented." Ohio v. Robinette, 519 U.S. 33, 38, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (internal quotation marks omitted). By taking a fallacy as its premise, the majority ensures it will reach the wrong decision. Still, you might think, the majority's approach has at least this benefit: In a future FLSA case, when an individual claim for damages in fact becomes moot, a court will know what to do with the collective allegations. But no, even that much cannot be said for the majority's opinion. That is because the individual claims in such cases will never become moot, and a court will therefore never need to reach the issue the majority resolves. The majority's decision is fit for nothing: Aside from getting this case wrong, it serves only to address a make-believe problem. To see why, consider how a collective FLSA action seeking damages unfolds. A plaintiff (just like Symczyk, but let us now call her Smith, to highlight her typicality) sues under § 216(b) on behalf of both herself and others. To determine whether Smith can serve as a representative party, the court considers whether the workplace policy her suit challenges has similarly affected other employees. If it has, the court supervises their discovery and notification, and then "oversee[s] the joinder" of any who want Smith to represent them. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). During that period, as the majority observes, the class has no "independent legal status." Ante, at 1530. At the same time, Smith's own claim is in perfect health. Because it is a damages claim for past conduct, the employer cannot extinguish it by adopting new employment practices. Indeed, the claim would survive even Smith's own demise, belonging then to her estate. Smith's individual claim, in short, is not going away on its own; it can easily wait out the time involved in assembling a collective action. Accord, ante, at 1531 ("[A] claim for damages cannot evade review; it remains live until it is settled [or] judicially resolved"). Now introduce a settlement offer into the picture: Assume that before the court finally decides whether to permit a collective action, the defendant proposes to pay Smith the value of her individual claim in exchange for her abandonment of the entire litigation. If Smith agrees, of course, all is over; like any plaintiff, she can assent to a settlement ending her suit. But assuming Smith does not agree, because she wishes to proceed on behalf of other employees, could the offer ever succeed in mooting her case? I have already shown that it cannot do so in the circumstances here, where the defendant makes an offer, the plaintiff declines it, and nothing else occurs: On those facts, Smith's claim is as it ever was, and the lawsuit continues onward. But suppose the defendant additionally requests that the court enter judgment in Smith's favor-though over her objection-for the amount offered to satisfy her individual claim. Could a court approve that motion and then declare the case over on the ground that Smith has no further stake in it? That course would be less preposterous than what the court did here; at least Smith, unlike Symczyk, would get some money. But it would be impermissible as well. For starters, Rule 68 precludes a court from imposing judgment for a plaintiff like Smith based on an unaccepted settlement offer made pursuant to its terms. The text of the Rule contemplates that a court will enter judgment only when a plaintiff accepts an offer. See Rule 68(a) ("If... the [plaintiff] serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment"). And the Rule prohibits a court from considering an unaccepted offer for any purpose other than allocating litigation costs-including for the purpose of entering judgment for either party. See Rule 68(b) ("Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs"). That injunction accords with Rule 68's exclusive purpose: to promote voluntary cessation of litigation by imposing costs on plaintiffs who spurn certain settlement offers. See Marek v. Chesny, 473 U.S. 1, 5, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985). The Rule provides no appropriate mechanism for a court to terminate a lawsuit without the plaintiff's consent. Nor does a court have inherent authority to enter an unwanted judgment for Smith on her individual claim, in service of wiping out her proposed collective action. To be sure, a court has discretion to halt a lawsuit by entering judgment for the plaintiff when the defendant unconditionally surrenders and only the plaintiff's obstinacy or madness prevents her from accepting total victory. But the court may not take that tack when the supposed capitulation in fact fails to give the plaintiff all the law authorizes and she has sought. And a judgment satisfying an individual claim does not give a plaintiff like Smith, exercising her right to sue on behalf of other employees, "all that [she] has... requested in the complaint (i.e., relief for the class)." Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 341, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) (Rehnquist, J., concurring). No more in a collective action brought under the FLSA than in any other class action may a court, prior to certification, eliminate the entire suit by acceding to a defendant's proposal to make only the named plaintiff whole. That course would short-circuit a collective action before it could begin, and thereby frustrate Congress's decision to give FLSA plaintiffs "the opportunity to proceed collectively. " Hoffmann-La Roche, 493 U.S., at 170, 110 S.Ct. 482; see Roper, 445 U.S., at 339, 100 S.Ct. 1166. It is our plaintiff Smith's choice, and not the defendant's or the court's, whether satisfaction of her individual claim, without redress of her viable classwide allegations, is sufficient to bring the lawsuit to an end. And so, the question the majority answers should never arise-which means the analysis the majority propounds should never apply. The majority assumes that an individual claim has become moot, and then asks whether collective allegations can still proceed by virtue Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

G

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Blackmun delivered the opinion of the Court. The issue here is whether the body of water known as Cook Inlet is a historic bay. The inlet extends northeastward well over 150 miles into the Alaskan land mass, with Kenai Peninsula to the southeast and the Chigmit Mountains to the northwest. The city of Anchorage is near the head of the inlet. The upper, or inner portion, of the inlet is not in dispute, for that part is conceded to be inland waters subject to Alaska’s sovereignty. If the inlet is a historic bay, the State of Alaska possesses sovereignty over the land beneath the waters of the lower, or seaward, portion of the inlet. If the inlet is not a historic bay, the United States, as against the State, has paramount rights to the subsurface lands in question. I In early 1967 the State of Alaska offered 2,500 acres of submerged lands in lower Cook Inlet for a competitive oil and gas lease sale. The tract in question is more •than three geographical miles from the shore of the inlet and is seaward more than three miles from a line across the inlet at Kalgin Island, where the headlands are about 24 miles apart, as contrasted with 47 miles at the natural entrance at Cape Douglas. In the view of the United States, the Kalgin Island line marks the limit of the portion of the inlet that qualifies as inland waters. The United States, contending that the lower inlet constitutes high seas, brought suit in the United States District Court for the District of Alaska to quiet title and for injunctive relief against the State.' Alaska defended on the ground that the inlet, in its entirety, was within the accepted definition of a “historic bay” and thus constituted inland waters properly subject to state sovereignty. Alaska prevailed in the District Court. 352 F. Supp. 815 (1972). The United States Court of Appeals for the Ninth Circuit affirmed with a per curiam opinion. 497 F. 2d 1155 (1974). We granted certiorari because of the importance of the litigation and because the case presented a substantial question concerning the proof necessary to establish a body of water as a historic bay. 419 U. S. 1045 (1974). II State sovereignty over submerged lands rests on the Submerged Lands Act of 1953, 67 Stat. 29, 43 U. S. C. §§ 1301-1315. By this Act, Congress effectively confirmed to the States the ownership of submerged lands within three miles of their coastlines. See United States v. Maine, 420 U. S. 515 (1975). “Coast line” was defined in terms not only of land but, as well, of “the seaward limit of inland waters.” The term “inland waters” was left undefined. In United States v. California, 381 U. S. 139, 161-167 (1965), the Court concluded that the definitions provided in the Convention on the Territorial Sea and the Contiguous Zone, [1964] 2 U. S. T. 1606, T. I. A. S. No. 5639, should be adopted for purposes of the Submerged Lands Act. See also United States v. Louisiana (Louisiana Boundary Case), 394 U. S. 11, 35 (1969). Under Art. 7 of the Convention, and particularly ¶¶ 5 and 6 thereof, a bay with natural entrance points separated by more than 24 miles is considered as inland water only if it is a “historic” bay. Since the distance between the natural entrance points to Cook Inlet is greatly in excess of 24 miles, the parties agree that Alaska must demonstrate that the inlet is a historic bay in order successfully to claim sovereignty over its lower waters and the land beneath those waters. The term “historic bay” is not defined in the Convention. The Court, however, has stated that in order to establish that a body of water is a historic bay, a coastal nation must have “traditionally asserted and maintained dominion with the acquiescence of foreign nations.” United States v. California, 381 U. S., at 172. Furthermore, the Court appears to have accepted the general view that at least three factors are significant in the determination of historic bay status: (1) the claiming nation must have exercised authority over the area; (2) that exercise must have been continuous; and (3) foreign states must have acquiesced in the exercise of authority. Louisiana Boundary Case, 394 U. S., at 75 and 23-24, n. 27. These were the general guidelines for the District Court and for the Court of Appeals in the present case. Ill The District Court divided its findings on the exercise of authority over lower Cook Inlet into three time periods, namely, that of Russian sovereignty, that of United States sovereignty, and that of Alaskan statehood. We discuss these in turn. A The evidence that Russia exercised authority over lower Cook Inlet as inland waters is understandably sparse. The District Court, nonetheless, concluded that “Russia exercised sovereignty over the disputed area of Cook Inlet.” The court based this conclusion on three findings. First, by the early 1800’s there were four Russian settlements on the shores of Cook Inlet. Second, about 1786, an attempt by an English vessel to enter the inlet drew a volley of cannon fire from a Russian fur trader in the vicinity of Port Graham. Third, in 1821, Tsar Alexander I issued a ukase that purported to exclude all foreign vessels from the waters within 100 miles of the Alaska coast. S. Exec. Doc. No. 106, 50th Cong., 2d Sess., 204-205 (1889). We feel that none of these facts, as found by the District Court, demonstrate the exercise of authority essential to the establishment of a historic bay. The presence of early Russian settlements on the shores of Cook Inlet certainly demonstrates the existence of a claim to the land, but it gives little indication of the authority Russia may have exerted over the vast expanse of waters that constitutes the inlet. The incident of the fur trader’s firing on an English vessel near Port Graham might be some evidence of a claim of sovereignty over the waters involved, but the act appears to be that of a private citizen rather than of a government official. In the absence of some evidence that the trader was acting with governmental authority, the incident is entitled to little legal significance. Moreover, under the then-common Cannon Shot Rule, the firing of cannon from shore was wholly consistent with the present position of the United States that the inland waters of Alaska near Port Graham are to be measured by the three-mile limit. Finally, the imperial ukase of 1821 is clearly inadequate as a demonstration of Russian authority over the waters of Cook Inlet because shortly after it had been issued the ukase was unequivocally withdrawn in the face of vigorous protests from the United States and England. B In reviewing the period of United States sovereignty over the, Territory of Alaska, the District Court found that there had been five separate instances in which the Federal Government had exercised authority over all the waters of Cook Inlet. Pet. for Cert. 26a-37a. 1. Revised Statutes § 1956 (1878). Soon after Alaska was ceded to the United States, Congress prohibited the killing of sea otter and other fur-bearing animals “within the limits of said territory, or in the waters thereof.” Act of July 27, 1868, 15 Stat. 241, codified as Rev. Stat. § 1956 (1878). By itself, the statutory language does not indicate whether the waters of lower Cook Inlet were encompassed within the limits of Alaska “territory, or in the waters thereof.” The District Court, however, found that in 1892 and 1893 five American vessels were boarded more than three miles from shore in the lower inlet by United States revenue officials investigating possible violations of § 1956. From these boardings the District Court concluded that the statutory prohibition was enforced throughout Cook Inlet. 2. The Alien Fishing Act of 1906. This Act, 34 Stat. 263, prohibited noncitizens of the United States from fishing by commercial methods “in any of the waters of Alaska under the jurisdiction of the United States.” Once again, the bare language of the statute fails to reveal the extent to which the prohibition applied to the waters of lower Cook Inlet. There is no evidence in the record and no findings by the District Court of any instance in which the Alien Fishing Act was enforced in the waters of Cook Inlet. 3. Executive Order No. 3752. In 1922 President Harding issued an Executive Order creating the Southwesterly Alaska Fisheries Reservation. Exec. Order No. 3752 (Nov. 3, 1922); 2 App. 676. The Order subjected all commercial fishing within the reservation to substantial regulation. See Regulations for the Administration of the Southwestern Alaska Fisheries Reservation, Department of Commerce Circular No. 251, pp. 8-9 (9th ed., Jan. 9, 1923); 2 App. 678-679. The reservation was described in the Order by a series of straight baselines to encompass a substantial expanse of waters, and the regulations promulgated pursuant to the Order by Secretary of Commerce Hoover referred to and embraced “all the shores and waters of Cook Inlet.” 4. The White Act. In 1924 Congress passed “An Act For the protection of the fisheries of Alaska, and for other purposes,” otherwise known as the White Act. C. 272,43 Stat. 464. This authorized the Secretary of Commerce to “set apart and reserve fishing areas in any of the waters of Alaska over which the United States has jurisdiction.” Ibid. The Act subjected commercial fishing within the reserved waters to such regulations as the Secretary might issue. From that time until Alaska statehood, the regulations of the Secretary defined the waters set aside pursuant to the Act to include all the waters of Cook Inlet. The District Court found that there had been several instances of enforcement of fishing regulations against American vessels more than three miles from shore in lower Cook Inlet. 5. The Gharrett-Scudder line. In 1957 representatives of Canada and of the United States met to discuss the possibility of prohibiting citizens of the two countries from fishing with nets for salmon in international waters in the North Pacific. The delegates generally agreed that the line used by the United States for enforcing fishing regulations under the White Act and related statutes would be used to delimit “offshore waters” for purposes of the joint salmon fishing limitations. Since the Canadian delegates felt that the description of the closing lines connecting headlands in the Alaska fishery regulations were not definitive, they requested a map showing the American line with greater precision. Two United States Bureau of Fisheries employees, John T. Gharrett and Henry Clay Scudder, prepared a chart of the Alaska coast with a line reflecting the boundaries in the then-current United States fishery regulations. This so-called Gharrett-Scudder line enclosed all the waters of Cook Inlet. Charts reflecting the line were transmitted to the Canadian delegates. It is undisputed that the exact location of the Gharrett-Scudder line was determined primarily with reference to the needs of fishery management. The maps were forwarded by the Bureau of Fisheries to the State Department for transmittal to the Canadian delegates with express disclaimers that the line was intended to bear any relationship to the territorial waters of the United States in a legal sense. Based on the facts summarized above, the District Court concluded that the United States had exercised authority over the waters of lower Cook Inlet continuously from the Treaty of Cession in 1867 until Alaska statehood. The District Court, of course, was clearly correct insofar as it found that the United States had exercised jurisdiction over lower Cook Inlet during the territorial period for the purpose of fish and wildlife management. It is far from clear, however, that the District Court was correct in concluding that the fact of enforcement of fish and wildlife regulations was legally sufficient to demonstrate the type of authority that must be exercised to establish title to a historic bay. In determining whether the enforcement of fish and wildlife management regulations in Cook Inlet was an exercise of authority sufficient to establish title to that body of water as a historic bay, it is necessary to recall the threefold division of the sea recognized in international law. As the Court stated in the Louisiana Boundary Case: “Under generally accepted principles of international law, the navigable sea is divided into three zones, distinguished by the nature of the control which the contiguous nation can exercise over them. Nearest to the nation's shores are its inland, or internal waters. These are subject to the complete sovereignty of the nation, as much as if they were a part of its land territory, and the coastal nation has the privilege even to exclude foreign vessels altogether. Beyond the inland waters, and measured from their seaward edge, is a belt known as the marginal, or territorial, sea. Within it the coastal nation may exercise extensive control but cannot deny the right of innocent passage to foreign nations. Outside the territorial sea are the high seas, which are international waters not subject to the dominion of any single nation.” 394 TJ. S., at 22-23 (footnotes omitted). We also recognized in the Louisiana Boundary Case that the exercise of authority necessary to establish historic title must be commensurate in scope with the nature of the title claimed. There the State of Louisiana argued that the exercise of jurisdiction over certain coastal waters for purposes of regulating navigation had given rise to historic title over the waters in question as inland waters. Since the navigation rules in question had allowed the innocent passage of foreign vessels, a characteristic of territorial seas rather than of inland waters, the Court concluded that the exercise of authority was not sufficient in scope to establish historic title over the area as inland waters. Id., at 24-26. As has been noted, and as the parties agree, Alaska, in order to prevail in this case, must establish historic title to Cook Inlet as inland waters. For this showing, the exercise of sovereignty must have been, historically, an assertion of power to exclude all foreign vessels and navigation. The enforcement of fish and wildlife regulations, as found and relied upon by the District Court, was patently insufficient in scope to establish historic title to Cook Inlet as inland waters. Only one of the fishing regulations relied upon by the court, the Alien Fishing Act, treated foreign vessels any differently than it did American vessels. That Act, however, did not purport to apply beyond the three-mile limit in Cook Inlet. It simply applied to “the waters of Alaska under the jurisdiction of the United States.” 34 Stat. 263. The meaning of that general statutory phrase, as applied to Cook Inlet, can only be surmised, since there was not a single instance of enforcement to suggest that the Act was applicable to foreign vessels in the waters beyond the three-mile limit in lower Cook Inlet. The remainder of the fish and wildlife regulations relied upon by the District Court clearly were enforced throughout lower Cook Inlet for at least much of the territorial period, but these regulations were not commensurate in scope with the claim of exclusive dominion essential to historic title over inland waters. Each afforded foreign vessels the same rights as were enjoyed by American ships. To be sure, there were instances of enforcement in the lower inlet, but in each case the vessels involved were American. These incidents prove very little, for the United States can and does enforce fish and wildlife regulations against its own nationals, even on the high seas. See, e. g., 38 Stat. 692, 16 U. S. C. § 781 (taking commercial sponges in the Gulf of Mexico or the Straits of Florida); 80 Stat. 1091, 16 U. S. C. § 1151 (taking fur seals in the North Pacific Ocean); 86 Stat. 1032, as amended, 16 U. S. C. § 1372 (1970 ed., Supp. Ill) (taking marine mammals on the high seas). See also Skiriotes v. Florida, 313 U. S. 69 (1941). Our conclusion that the fact of enforcement of game and fish regulations in Cook Inlet is inadequate, as a matter of law, to establish historic title to the inlet as inland waters is not based on mere technicality. The assertion of national jurisdiction over coastal waters for purposes of fisheries management frequently differs in geographic extent from the boundaries claimed as inland or even territorial waters. See, e. g., Presidential Proclamation No. 2668, 59 Stat. 885 (1945). This limited circumscription of the traditional freedom of fishing on the high seas is based, in part, on a recognition of the special interest that a coastal state has in the preservation of the living resources in the high seas adjacent to its territorial sea. Convention on Fishing and Conservation of the Living Resources of the High Seas, Art. 6, H 1, [1966] 1 U. S. T. 138, 141, T. I. A. S. 5969. Even a casual examination of the facts relied upon by the District Court in this case reveals that the geographic scope of the fish and wildlife enforcement efforts was determined primarily, if not exclusively, by the needs of effective management of the fish and game population involved. Thus, for example, the Gharrett-Scudder line, which the District Court considered “a classic demonstration of the assertion by the United States government of its claim to sovereignty over the whole of Cook Inlet,” Pet. for Cert. 37a, was drawn almost solely with reference to the needs of the coastal salmon net fisheries and was never intended to depict the boundaries of the territorial waters of the United States. Indeed, the very method of drawing the fishery boundaries by use of straight baselines conflicted with this country’s traditional policy of measuring its territorial waters by the sinuosity of the coast. See United States v. California, 381 U. S., at 167-169. Even if we could agree that the boundaries selected for purposes of enforcing fish and wildlife regulations coincided with an intended assertion of territorial sovereignty over Cook Inlet as inland waters, we still would disagree with the District Court’s conclusion that historic title was established in the territorial period. The court found that the third essential element of historic title, acquiescence by foreign nations, was satisfied by the failure of any foreign nation to protest. Scholarly comment is divided over whether the mere absence of opposition suffices to establish title. See Juridical Regime of Historic Waters, Including Historic Bays, 2 Yearbook of the International Law Commission, 1962, pp. 1, 16-19 (U. N. Doc. A/CN.4/143). The Court previously has noted this division but has taken no position in the debate. See Louisiana Boundary Case, 394 U. S., at 23-24, n. 27. In this case, we feel that something more than the mere failure to object must be shown. The failure of other countries to protest is meaningless unless it is shown that the governments of those countries knew or reasonably should have known of the authority being asserted. Many assertions of authority are such clear expressions of exclusive sovereignty that they cannot be mistaken by other governments. Other assertions of authority, however, may not be so clear. One scholar notes: “Thus, the placing of lights or beacons may sometimes appear to be an act of sovereignty, while in other circumstances it may have no such significance.” Juridical Regime of Historic Waters, supra, at 14. We believe that the routine enforcement of domestic game and fish regulations in Cook Inlet in the territorial period failed to inform foreign governments of any claim of dominion. In the absence of any awareness on the part of foreign governments of a claimed territorial sovereignty over lower Cook Inlet, the failure of those governments to protest is inadequate proof of the acquiescence essential to historic title. C The District Court stressed two facts as evidence that Alaska had exercised sovereignty over all the waters of Cook Inlet in the recent period of Alaska statehood. First, the court found that since statehood Alaska had enforced fishing regulations in basically the same fashion as had the United States during the territorial period. Second, the court found that in 1962 Alaska had arrested two vessels of a Japanese fishing fleet in the Shelikof Strait. Since we have concluded that the general enforcement of fishing regulations by the United States in the territorial period was insufficient to demonstrate sovereignty over Cook Inlet as inland waters, we also must conclude that Alaska’s following the same basic pattern of enforcement is insufficient to give rise to the historic title now claimed. The Shelikof Strait incident, however, deserves scrutiny because the seizure of a foreign vessel more than three miles from shore manifests an assertion of sovereignty to exclude^ foreign vessels altogether. The facts of the incident, for the most part, are undisputed. In early 1962 a private commercial fishing enterprise in Japan, Eastern Pacific Fisheries Company, publicly announced its intention to send a fishing fleet into the waters of Cook Inlet and the Shelikof Strait. Alaska officials learned of the plan through newspaper accounts and requested action by the Federal Government to prevent entry of the fleet into the inlet and the strait. The Federal Government, although thus forewarned of the intrusion, significantly took no action. In March 1962, the mothership Banshu Maru 81 and five other vessels arrived at the Kodiak fishing grounds. On April 5, the six vessels sailed north of the Barren Islands into the lower portion of Cook Inlet. The vessels left the inlet the next day without incident and sailed southwest into the Shelikof Strait. The vessels fished in the strait for approximately 10 days undisturbed. Then, on April 15, Alaska law enforcement officials boarded two of the vessels in the Shelikof Strait. At the time, at least one of the ships was more than three miles from shore. The officials arrested three of the fleet’s captains and charged them with violating the state fishing regulations applicable to the strait. On April 19, Eastern Pacific Fisheries Company and the State of Alaska entered into an agreement whereby the State released the company’s employees and ships in return for a promise from the company that it would not fish in the inlet or in the strait pending judicial resolution of the State’s jurisdiction to enforce fishing regulations therein. 2 App. 1186-1188. The Japanese Government did not participate in, or approve of, the agreement between the company and Alaska. Instead, shortly after the agreement was executed, Japan formally protested to the United States Government. Our Government declined to take an official position on the matter pending completion of the judicial proceedings. Ultimately, the judicial proceedings were dismissed without reaching any conclusion on the extent of Alaskan jurisdiction over the strait. The Federal Government took no formal position on the issue after the dismissal of the proceedings. To the extent that the Shelikof Strait incident reveals a determination on the part of Alaska to exclude all foreign vessels, it must be viewed, to be sure, as an exercise of authority over the waters in question as inland waters. Nevertheless, for several reasons, we find the incident inadequate to establish historic title to Cook Inlet as inland waters. First, the incident was an exercise of sovereignty, if at all, only over the waters of Shelikof Strait. The vessels were boarded in the strait, some 75.miles southwest from the nearest portion of the inlet. Although Alaska officials knew of the fleet’s earlier entry into Cook Inlet, no action was taken to force the vessels to leave the inlet, and no charges were filed for the intrusion into those waters. Second, even if the events in Shelikof Strait could constitute an assertion of authority over the waters of Cook Inlet as well as those of the strait, we are not satisfied that the exercise of authority was sufficiently unambiguous to serve as the basis of historic title to inland waters. The adequacy of a claim to historic title, even in a dispute between a State and the United States, is measured primarily as an international, rather than a purely domestic, claim. See United States v. California, 381 U. S., at 168; Louisiana Boundary Case, 394 U. S., at 77. Viewed from the standpoint of the Japanese Government, the import of the incident in the strait is far from clear. Alaska clearly claimed the waters in question as inland waters, but the United States neither supported nor disclaimed the State’s position. Given the ambiguity of the Federal Government’s position, we cannot agree that the assertion of sovereignty possessed the clarity essential to a claim of historic title over inland waters. Finally, regardless of how one views the Shelikof Strait incident, it is impossible to conclude that the exercise of sovereignty was acquiesced in by the Japanese Government. Japan immediately protested the incident and has never acceded to the position taken by Alaska. Admittedly, the Eastern Pacific Fisheries Company formally and tentatively agreed to respect the jurisdiction claimed by Alaska but, as we have already noted, the acts of a private citizen cannot be considered representative of a government’s position in the absence of some official license or other governmental authority. In sum, we hold that the District Court’s conclusion that Cook Inlet is a historic bay was based on an erroneous assessment of the legal significance of the facts it had found. The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Me. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Stewart and Mr. Justice Rehnquist would affirm the judgment, believing that the findings of fact made by the District Court and adopted by the Court of Appeals were not clearly erroneous, and that both of those courts applied the correct legal criteria in ruling that Cook Inlet is a historic bay. Cook Inlet is larger than Great Salt Lake and Lake Ontario. It is about the same size as Lake Erie. It dwarfs Chesapeake Bay, Delaware Bay, and Long Island Sound, all of which the United States has claimed as historic bays. It would appear that the case qualifies, under Art. Ill, § 2, cl. 2, of the Constitution, for our original jurisdiction. United States v. West Virginia, 295 U. S. 463, 470 (1935). We are not enlightened as to why the United States chose not to bring an original action in this Court. Section 6 (m) of the Alaska Statehood Act of July 7, 1958, provides that the Submerged Lands Act “shall be applicable to the State of Alaska and the said State shall have the same rights as do existing States thereunder.” 72 Stat. 343, note following 48 U. S. C. c. 2. Section 2 of the Act provides: “The State of Alaska shall consist of all the territory, together with the territorial waters appurtenant thereto, now included in the Territory of Alaska.” 72 Stat. 339, note following 48 U. S. C. c. 2. Section 3 (a) of the Submerged Lands Act, 43 U. S. C. § 1311 (a), provides: “It is determined and declared to be in the public interest that (1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States....” Section 2 (b), 43 U. S. C. § 1301 (b), defines a State’s boundaries: “The term ‘boundaries’ includes the seaward boundaries of a State... as they existed at the time such State became a member of the Union... but in no event shall the term ‘boundaries’ or the term ‘lands beneath navigable waters’ be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean....” Section 2 (c) of the Act, 43 U. S. C. § 1301 (c), reads: "The term ‘coast line’ means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.” The full text of Art. 7 is as follows: "1. This article relates only to bays the coasts of which belong to a single State. “2. For the purposes of these articles, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation. "3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water marks of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water areas of the indentation. “4. If the distance between the low-water marks of the natural entrance points of a bay does not exceed twenty-four miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shah be considered as internal waters. “5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds twenty-four miles, a straight baseline of twenty-four miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length. “6. The foregoing provisions shall not apply to so-called 'historic’ bays, or in any case where the straight baseline system provided for in article 4 is applied.” Brief for Respondent 1; Brief for United States 2, 32. Some disagreement exists as to whether there must be formal acquiescence on the part of foreign states, or whether the mere absence of opposition is sufficient. United States v. Louisiana (Louisiana Boundary Case) 394 U. S. 11, 23-24, n. 27 (1969). Pet. for Cert. 25a. In addition to its reported opinion, 352 F. Supp. 815 (Alaska 1972), the District Court made detailed written findings and conclusions that are not published. These are reproduced in the Petition for Certiorari 21a-55a. The reported opinion of the District Court did not discuss the exercise of sovereignty prior to 1906, but the unreported findings indicate that the court relied on assertions of authority dating from Russian territorial times as well as the early American period. As with many colonial enterprises of the day, the governance of Alaska in the Russian period, for the most part, was exercised through semiprivate corporations. See generally H. Chevigny, Russian America: The Great Alaska Venture, 1741-1867 (1965). The most important of these corporations, the Russian-American Company, was chartered in 1799, several years after the incident near Port Graham. Id., at 75 The record and findings are silent on the relationship between the fur trader and the interests asserted. Thus, we have no occasion to consider whether the acts of a semiprivate colonial corporation are to be given the same weight as the direct acts of a national government for purposes of establishing a claim to historic Waters. The Cannon Shot Rule was to the effect that a coastal state possessed sovereignty over the waters within range of cannon shot from its shore. Many modern scholars believe that the present 3-mile limit is derived from the traditional range of 18th century cannon. Kent, The Historical Origins of the Three-Mile Limit, 48 Am. J. Int’l L. 537 (1954); Walker, Territorial Waters: The Cannon Shot Rule, 22 Brit. Y. B. Int’l L. 210 (1945). The actual range of the cannon fired by the fur trader is, of course, now irrelevant. The significant fact is that the incident can be viewed as an assertion of jurisdiction only over those waters in Cook Inlet that were within range of cannon shot from shore. For a discussion of the events surrounding the issuance and withdrawal of the ukase, see Chevigny, supra, n. 10, at 174-188. By the Treaty of Cession in 1867 Russia ceded to the United States “all the territory and dominion now possessed [by Russia] on the continent of America and in the adjacent islands.” 15 Stat. 539. The cession was effectively a quitclaim. It is undisputed that the United States thereby acquired whatever dominion Russia had possessed immediately prior to cession. In June 1892 a United States revenue cutter, the Mohican, entered Cook Inlet to enforce Rev. Stat. § 1956. The Mohican arrested three American vessels in the lower inlet on charges of violating the statute. The prosecutions ultimately were dismissed on the ground that the vessels merely had been purchasing pelts from natives who were authorized by § 1956 to hunt sea otter for commercial sale. See The Kodiak, 53 F. 126 (Alaska 1892). In 1893 two other American vessels were stopped in the lower inlet by a revenue cutter. Since these vessels, like the Kodiak, were carrying only native hunting parties, they were allowed to proceed without further incident. The District Court made no findings about the enforcement of § 1956 after June 1893. The District Court acknowledged that no foreign vessels had ever been arrested in Cook Inlet on charges of violating the Alien Fishing Act. The court sought to explain this fact on the ground that foreign vessels entered the inlet infrequently. The court relied on statements of certain former wildlife officials that “they would have taken affirmative action” against foreign vessels if they had seen any in the inlet. 352 F. Supp., at 819-820. In the absence of any actual enforcement or official announcement of intentions to enforce the Alien Fishing Act in lower Cook Inlet, the private intentions of witnesses are largely irrelevant. The testimony of John T. Gharrett, who was called as a witness by the State of Alaska, is indicative of the predominance of fish and wildlife concerns in the preparation of the Gharrett-Scudder line: On direct examination: “Q What was your role in the preparation of that line? “A My role was to decide where the line goes. “Q Did you have assistance from anyone? “A Mr. Clay Scutter [sic]. “Q Has the line since been given any kind of name? “A Oh, I don’t know since. At the time we drew it, rather than to say 'a line beyond which we proposed,’ et cetera, et cetera, we called it the Gharrett-Scutter [sic] line for short. “Q In your preparation of the line what criteria did you use for placing the line on the chart? “A We used two basic criteria: 1) we wanted to encompass within the line existing salmon net fisheries along the Coast of Alaska, and 2) we wanted in some areas to allow for a modest, perhaps, expansion of existing fisheries, salmon net fisheries.” 1 App. 292-293. On cross-examination by counsel for the United States: “Q Did the lines you drew enclose areas in which you knew foreigners had previously fished? “A Yes. “Q By drawing these lines did you intend to stop those fisheries? “A No. “Q Was the line you drew with Mr. Scutter [sic] intended to represent the outer limit of the territorial sea? “A No. “Q Was the line you drew with Mr. Scutter [sic] intended to represent the base line from which the territorial sea Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

J

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Chief Justice Rehnquist delivered the opinion of the Court. Petitioner challenges the decision of the Oregon Supreme Court which held that the city of Tigard could condition the approval of her building permit on the dedication of a portion of her property for flood control and traffic improvements. 317 Ore. 110, 854 P. 2d 437 (1993). We granted certiorari to resolve a question left open by our decision in Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987), of what is the required degree of connection between the exactions imposed by the city and the projected impacts of the proposed development. I The State of Oregon enacted a comprehensive land use management program in 1973. Ore. Rev. Stat. §§ 197.005-197.860 (1991). The program required all Oregon cities and counties to adopt new comprehensive land use plans that were consistent with the statewide planning goals. §§ 197.175(1), 197.250. The plans are implemented by land use regulations which are part of an integrated hierarchy of legally binding goals, plans, and regulations. §§ 197.175, 197.175(2)(b). Pursuant to the State’s requirements, the city of Tigard, a community of some 30,000 residents on the southwest edge of Portland, developed a comprehensive plan and codified it in its Community Development Code (CDC). The CDC requires property owners in the area zoned Central Business District to comply with a 15% open space and landscaping requirement, which limits total site coverage, including all structures and paved parking, to 85% of the parcel. CDC, ch. 18.66, App. to Pet. for Cert. G-16 to G-17. After the completion of a transportation study that identified congestion in the Central Business District as a particular problem, the city adopted a plan for a pedestrian/bicycle pathway intended to encourage alternatives to automobile transportation for short trips. The CDC requires that new development facilitate this plan by dedicating land for pedestrian pathways where provided for in the pedestrian/bicycle pathway plan. The city also adopted a Master Drainage Plan (Drainage Plan). The Drainage Plan noted that flooding occurred in several areas along Fanno Creek, including areas near petitioner’s property. Record, Doc. No. F, ch. 2, pp. 2-5 to 2-8; 4-2 to 4-6; Figure 4-1. The Drainage Plan also established that the increase in impervious surfaces associated with continued urbanization would exacerbate these flooding problems. To combat these risks, the Drainage Plan suggested a series of improvements to the Fanno Creek Basin, including channel excavation in the area next to petitioner’s property. App. to Pet. for Cert. G-13, G-38. Other recommendations included ensuring that the floodplain remains free of structures and that it be preserved as greenways to minimize flood damage to structures. Record, Doc. No. F, ch. 5, pp. 5-16 to 5-21. The Drainage Plan concluded that the cost of these improvements should be shared based on both direct and indirect benefits, with property owners along the waterways paying more due to the direct benefit that they would receive. Id., ch. 8, p. 8-11. CDC Chapters 18.84 and 18.86 and CDC §18.164.100 and the Tigard Park Plan carry out these recommendations. Petitioner Florence Dolan owns a plumbing and electric supply store located on Main Street in the Central Business District of the city. The store covers approximately 9,700 square feet on the eastern side of a 1.67-acre parcel, which includes a gravel parking lot. Fanno Creek flows through the southwestern corner of the lot and along its western boundary. The year-round flow of the creek renders the area within the creek’s 100-year floodplain virtually unusable for commercial development. The city’s comprehensive plan includes the Fanno Creek floodplain as part of the city’s greenway system. Petitioner applied to the city for a permit to redevelop the site. Her proposed plans called for nearly doubling the size of the store to 17,600 square feet and paving a 39-space parking lot. The existing store, located on the opposite side of the parcel, would be razed in sections as construction progressed on the new building. In the second phase of the project, petitioner proposed to build an additional structure on the northeast side of the site for complementary businesses and to provide more parking. The proposed expansion and intensified use are consistent with the city’s zoning scheme in the Central Business District. CDC § 18.66.030, App. to Brief for Petitioner C-l to C-3. The City Planning Commission (Commission) granted petitioner’s permit application subject to conditions imposed by the city’s CDC. The CDC establishes the following standard for site development review approval: “Where landfill and/or development is allowed within and adjacent to the 100-year floodplain, the City shall require the dedication of sufficient open land area for greenway adjoining and within the floodplain. This area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian/ bicycle plan.” CDC § 18.120.180.A.8, App. to Brief for Respondent B-45 to B-46. Thus, the Commission required that petitioner dedicate the portion of her property lying within the 100-year floodplain for improvement of a storm drainage system along Fanno Creek and that she dedicate an additional 15-foot strip of land adjacent to the floodplain as a pedestrian/bicycle pathway. The dedication required by' that condition encompasses approximately 7,000 square feet, or roughly 10% of the property. In accordance with city practice, petitioner could rely on the dedicated property to meet the 15% open space and landscaping requirement mandated by the city’s zoning scheme. App. to Pet. for Cert. G-28 to G-29. The city would bear the cost of maintaining a landscaped buffer between the dedicated area and the new store. Id., at G-44 to G-45. Petitioner requested variances from the CDC standards. Variances are granted only where it can be shown that, owing to special circumstances related to a specific piece of the land, the literal interpretation of the applicable zoning provisions would cause “an undue or unnecessary hardship” unless the variance is granted. CDC §18.134.010, App. to Brief for Respondent B-47. Rather than posing alternative mitigating measures to offset the expected impacts of her proposed development, as allowed under the CDC, petitioner simply argued that her proposed development would not conflict with the policies of the comprehensive plan. Id., at E-4. The Commission denied the request. The Commission made a series of findings concerning the relationship between the dedicated conditions and the projected impacts of petitioner’s project. First, the Commission noted that “[i]t is reasonable to assume that customers and employees of the future uses of this site could utilize a pedestrian/bicycle pathway adjacent to this development for their transportation and recreational needs.” City of Tigard Planning Commission Final Order No. 91-09 PC, App. to Pet. for Cert. G-24. The Commission noted that the site plan has provided for bicycle parking in a rack in front of the proposed building and “[i]t is reasonable to expect that some of the users of the bicycle parking provided for by the site plan will use the pathway adjacent to Fanno Creek if it is constructed.” Ibid. In addition, the Commission found that creation of a convenient, safe pedestrian/bicycle pathway system as an alternative means of transportation “could offset some of the traffic demand on [nearby] streets and lessen the increase in traffic congestion.” Ibid. The Commission went on to note that the required floodplain dedication would be reasonably related to petitioner’s request to intensify the use of the site given the increase in the impervious surface. The Commission stated that the “anticipated increased storm water flow from the subject property to an already strained creek and drainage basin can only add to the public need to manage the stream channel and floodplain for drainage purposes.” Id., at G-37. Based on this anticipated increased storm water flow, the Commission concluded that “the requirement of dedication of the floodplain area on the site is related to the applicant’s plan to intensify development on the site.” Ibid. The Tigard City Council approved the Commission’s final order, subject to one minor modification; the city council reassigned the responsibility for surveying and marking the floodplain area from petitioner to the city’s engineering department. Id., at G-7. Petitioner appealed to the Land Use Board of Appeals (LUBA) on the ground that the city’s dedication requirements were not related to the proposed development, and, therefore, those requirements constituted an uncompensated taking of her property under the Fifth Amendment. In evaluating the federal taking claim, LUBA assumed that the city’s findings about the impacts of the proposed development were supported by substantial evidence. Dolan v. Tigard, LUBA 91-161 (Jan. 7, 1992), reprinted at App. to Pet. for Cert. D-15, n. 9. Given the undisputed fact that the proposed larger building and paved parking area would increase the amount of impervious surfaces and the runoff into Fanno Creek, LUBA concluded that “there is a ‘reasonable relationship’ between the proposed development and the requirement to dedicate land along Fanno Creek for a greenway.” Id., at D-16. With respect to the pedestrian/bicycle pathway, LUBA noted the Commission’s finding that a significantly larger retail sales building and parking lot would attract larger numbers of customers and employees and their vehicles. It again found a “reasonable relationship” between alleviating the impacts of increased traffic from the development and facilitating the provision of a pedestrian/ bicycle pathway as an alternative means of transportation. Ibid. The Oregon Court of Appeals affirmed, rejecting petitioner’s contention that in Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987), we had abandoned the “reasonable relationship” test in favor of a stricter “essential nexus” test. 113 Ore. App. 162, 832 P. 2d 853 (1992). The Oregon Supreme Court affirmed. 317 Ore. 110, 854 P. 2d 437 (1993). The court also disagreed with petitioner’s contention that the Nollan Court abandoned the “reasonably related” test. 317 Ore., at 118, 854 P. 2d, at 442. Instead, the court read Nollan to mean that an “exaction is reasonably related to an impact if the exaction serves the same purpose that a denial of the permit would serve.” 317 Ore., at 120, 854 P 2d, at 443. The court decided that both the pedestrian/bicycle pathway condition and the storm drainage dedication had an essential nexus to the development of the proposed site. Id., at 121, 854 P. 2d, at 443. Therefore, the court found the conditions to be reasonably related to the impact of the expansion of petitioner’s business. Ibid. We granted certiorari, 510 U. S. 989 (1993), because of an alleged conflict between the Oregon Supreme Court’s decision and our decision in Nollan, supra. II The Takings Clause of the Fifth Amendment of the United States Constitution, made applicable to the States through the Fourteenth Amendment, Chicago, B. & Q. R. Co. v. Chi cago, 166 U. S. 226, 239 (1897), provides: “[N]or shall private property be taken for public use, without just compensation.” One of the principal purposes of the Takings Clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960). Without question, had the city simply required petitioner to dedicate a strip of land along Fanno Creek for public use, rather than conditioning the grant of her permit to redevelop her property on such a dedication, a taking would have occurred. Nollan, supra, at 831. Such public access would deprive petitioner of the right to exclude others, “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Kaiser Aetna v. United States, 444 U. S. 164, 176 (1979). On the other side of the ledger, the authority of state and local governments to engage in land use planning has been sustained against constitutional challenge as long ago as our decision in Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926). “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 413 (1922). A land use regulation does not effect a taking if it “substantially advance[s] legitimate state interests” and does not “den[y] an owner economically viable use of his land.” Agins. v. City of Tiburon, 447 U. S. 255, 260 (1980). The sort of land use regulations discussed in the cases just cited, however, differ in two relevant particulars from the present case. First, they involved essentially legislative determinations classifying entire areas of the city, whereas here the city made an adjudicative decision to condition petitioner’s application for a building permit on an individual parcel. Second, the conditions imposed were not simply a limitation on the use petitioner might make of her own parcel, but a requirement that she deed portions of the property to the city. In Nollan, supra, we held that governmental authority to exact such a condition was circumscribed by the Fifth and Fourteenth Amendments. Under the well-settled doctrine of “unconstitutional conditions,” the government may not require a person to give up a constitutional right— here the right to receive just compensation when property is taken for a public use — in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property. See Perry v. Sindermann, 408 U. S. 593 (1972); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968). Petitioner contends that the city has forced her to choose between the building permit and her right under the Fifth Amendment to just compensation for the public easements. Petitioner does not quarrel with the city’s authority to exact some forms of dedication as a condition for the grant of a building permit, but challenges the showing made by the city to justify these exactions. She argues that the city has identified “no special benefits” conferred on her, and has not identified any “special quantifiable burdens” created by her new store that would justify the particular dedications required from her which are not required from the public at large. Ill In evaluating petitioner’s claim, we must first determine whether the “essential nexus” exists between the “legitimate state interest” and the permit condition exacted by the city. Nollan, 483 U. S., at 837. If we find that a nexus exists, we must then decide the required degree of connection between the exactions and the projected impact of the proposed development. We were not required to reach this question in Nollan, because we concluded that the connection did not meet even the loosest standard. Id., at 838. Here, however, we must decide this question. A We addressed the essential nexus question in Nollan. The California Coastal Commission demanded a lateral public easement across the Nollans’ beachfront lot in exchange for a permit to demolish an existing bungalow and replace it with a three-bedroom house. Id., at 828. The public easement was designed to connect two public beaches that were separated by the Nollans’ property. The Coastal Commission had asserted that the public easement condition was imposed to promote the legitimate state interest of diminishing the “blockage of the view of the ocean” caused by construction of the larger house. We agreed that the Coastal Commission’s concern with protecting visual access to the ocean constituted a legitimate public interest. Id., at 835. We also agreed that the permit condition would have been constitutional “even if it consisted of the requirement that the Nollans provide a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere.” Id., at 836. We resolved, however, that the Coastal Commission’s regulatory authority was set completely adrift from its constitutional moorings when it claimed that a nexus existed between visual access to the ocean and a permit condition requiring lateral public access along the Nollans’ beachfront lot. Id., at 837. How enhancing the public’s ability to “traverse to and along the shorefront” served the same governmental purpose of “visual access to the ocean” from the roadway was beyond our ability to countenance. The absence of a nexus left the Coastal Commission in the position of simply trying to obtain an easement through gimmickry, which converted a valid regulation of land use into “ ‘an out-and-out plan of extortion.’ ” Ibid., quoting J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 584, 432 A. 2d 12, 14-15 (1981). No such gimmicks are associated with the permit conditions imposed by the city in this case. Undoubtedly, the prevention of flooding along Fanno Creek and the reduction of traffic congestion in the Central Business District qualify as the type of legitimate public purposes we have upheld. Agins, 447 U. S., at 260-262. It seems equally obvious that a nexus exists between preventing flooding along Fanno Creek and limiting development within the creek’s 100-year floodplain. Petitioner proposes to double the size of her retail store and to pave her now-gravel parking lot, thereby expanding the impervious surface on the property and increasing the amount of storm water runoff into Fanno Creek. The same may be said for the city’s attempt to reduce traffic congestion by providing for alternative means of transportation. In theory, a pedestrian/bicycle pathway provides a useful alternative means of transportation for workers and shoppers: “Pedestrians and bicyclists occupying dedicated spaces for walking and/or bicycling... remove potential vehicles from streets, resulting in an overall improvement in total transportation system flow.” A. Nelson, Public Provision of Pedestrian and Bicycle Access Ways: Public Policy Rationale and the Nature of Private Benefits 11, Center for Planning Development, Georgia Institute of Technology, Working Paper Series (Jan. 1994). See also Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. 102-240, 105 Stat. 1914 (recognizing pedestrian and bicycle facilities as necessary components of any strategy to reduce traffic congestion). B The second part of our analysis requires us to determine whether the degree of the exactions demanded by the city’s permit conditions bears the required relationship to the projected impact of petitioner’s proposed development. Nollan, supra, at 834, quoting Penn Central Transp. Co. v. New York City, 438 U. S. 104, 127 (1978) (“ ‘[A] use restriction may constitute a “taking” if not reasonably necessary to the effectuation of a substantial government purpose’”). Here the Oregon Supreme Court deferred to what it termed the “city’s unchallenged factual findings” supporting the dedication conditions and found them to be reasonably related to the impact of the expansion of petitioner’s business. 317 Ore., at 120-121, 854 P. 2d, at 443. The city required that petitioner dedicate “to the City as Greenway all portions of the site that fall within the existing 100-year floodplain [of Fanno Creek]... and all property 15 feet above [the floodplain] boundary.” Id., at 113, n. 3, 854 P. 2d, at 439, n. 3. In addition, the city demanded that the retail store be designed so as not to intrude into the green-way area. The city relies on the Commission’s rather tentative findings that increased storm water flow from petitioner’s property “can only add to the public need to manage the [floodplain] for drainage purposes” to support its conclusion that the “requirement of dedication of the floodplain area on the site is related to the applicant’s plan to intensify development on the site.” City of Tigard Planning Commission Final Order No. 91-09 PC, App. to Pet. for Cert. G-37. The city made the following specific findings relevant to the pedestrian/bicycle pathway: “In addition, the proposed expanded use of this site is anticipated to generate additional vehicular traffic thereby increasing congestion on nearby collector and arterial streets. Creation of a convenient, safe pedestrian/bicycle pathway system as an alternative means of transportation could offset some of the traffic demand on these nearby streets and lessen the increase in traffic congestion.” Id., at G-24. The question for us is whether these findings are constitutionally sufficient to justify the conditions imposed by the city on petitioner’s building permit. Since state courts have been dealing with this question a good deal longer than we have, we turn to representative decisions made by them. In some States, very generalized statements as to the necessary connection between the required dedication and the proposed development seem to suffice. See, e. g., Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394 P. 2d 182 (1964); Jenad, Inc. v. Scarsdale, 18 N. Y. 2d 78, 218 N. E. 2d 673 (1966). We think this standard is too lax to adequately protect petitioner’s right to just compensation if her property is taken for a public purpose. Other state courts require a very exacting correspondence, described as the “specifi[c] and uniquely attributable” test. The Supreme Court of Illinois first developed this test in Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375, 380, 176 N. E. 2d 799, 802 (1961). Under this standard, if the local government cannot demonstrate that its exaction is directly proportional to the specifically created need, the exaction becomes “a veiled exercise of the power of eminent domain and a confiscation of private property behind the defense of police regulations.” Id., at 381,176 N. E. 2d, at 802. We do not think the Federal Constitution requires such exacting scrutiny, given the nature of the interests involved. A number of state courts have taken an intermediate position, requiring the municipality to show a “reasonable relationship” between the required dedication and the impact of the proposed development. Typical is the Supreme Court of Nebraska’s opinion in Simpson v. North Platte, 206 Neb. 240, 245, 292 N. W. 2d 297, 301 (1980), where that court stated: “The distinction, therefore, which must be made between an appropriate exercise of the police power and an improper exercise of eminent domain is whether the requirement has some reasonable relationship or nexus to the use to which the property is being made or is merely being used as an excuse for taking property simply because at that particular moment the landowner is asking the city for some license or permit.” Thus, the court held that a city may not require a property owner to dedicate private property for some future public use as a condition of obtaining a building permit when such future use is not “occasioned by the construction sought to be permitted.” Id., at 248, 292 N. W. 2d, at 302. Some form of the reasonable relationship test has been adopted in many other jurisdictions. See, e. g., Jordan v. Menomonee Falls, 28 Wis. 2d 608, 137 N. W. 2d 442 (1965); Collis v. Bloomington, 310 Minn. 5, 246 N. W. 2d 19 (1976) (requiring a showing of a reasonable relationship between the planned subdivision and the municipality’s need for land); College Station v. Turtle Rock Corp., 680 S. W. 2d 802, 807 (Tex. 1984); Call v. West Jordan, 606 P. 2d 217, 220 (Utah 1979) (affirming use of the reasonable relation test). Despite any semantical differences, general agreement exists among the courts “that the dedication should have some reasonable relationship to the needs created by the [development].” Ibid. See generally Note, “‘Take’ My Beach Please!”: Nollan v. California Coastal Commission and a Rational-Nexus Constitutional Analysis of Development Exactions, 69 B. U. L. Rev. 823 (1989); see also Parks v. Watson, 716 F. 2d 646, 651-653 (CA9 1983). We think the “reasonable relationship” test adopted by a majority of the state courts is closer to the federal constitutional norm than either of those previously discussed. But we do not adopt it as such, partly because the term “reasonable relationship” seems confusingly similar to the term “rational basis” which describes the minimal level of scrutiny under the Equal Protection Clause of the Fourteenth Amendment. We think a term such as “rough proportionality” best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development. Justice Stevens’ dissent relies upon a law review article for the proposition that the city’s conditional demands for part of petitioner’s property are “a species of business regulation that heretofore warranted a strong presumption of constitutional validity.” Post, at 402. But simply denominating a governmental measure as a “business regulation” does not immunize it from constitutional challenge on the ground that it violates a provision of the Bill of Rights. In Marshall v. Barlow’s, Inc., 436 U. S. 307 (1978), we held that a statute authorizing a warrantless search of business premises in order to detect OSHA violations violated the Fourth Amendment. See also Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U. S. 861 (1974); New York v. Burger, 482 U. S. 691 (1987). And in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980), we held that an order of the New York Public Service Commission, designed to cut down the use of electricity because of a fuel shortage, violated the First Amendment insofar as it prohibited advertising by a utility company to promote the use of electricity. We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances. We turn now to analysis of whether the findings relied upon by the city here, first with respect to the floodplain easement, and second with respect to the pedestrian/bicycle path, satisfied these requirements. It is axiomatic that increasing the amount of impervious surface will increase the quantity and rate of storm water flow from petitioner’s property. Record, Doc. No. F, ch. 4, p. 4-29. Therefore, keeping the floodplain open and free from development would likely confine the pressures on Fanno Creek created by petitioner’s development. In fact, because petitioner’s property lies within the Central Business District, the CDC already required that petitioner leave 15% of it as open space and the undeveloped floodplain would have nearly satisfied that requirement. App. to Pet. for Cert. G-16 to G-17. But the city demanded more — it not only wanted petitioner not to build in the floodplain, but it also wanted petitioner’s property along Fanno Creek for its greenway system. The city has never said why a public greenway, as opposed to a private one, was required in the interest of flood control. The difference to petitioner, of course, is the loss of her ability to exclude others. As we have noted, this right to exclude others is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Kaiser Aetna, 444 U. S., at 176. It is difficult to see why recreational visitors trampling along petitioner’s floodplain easement are sufficiently related to the city’s legitimate interest in reducing flooding problems along Fanno Creek, and the city has not attempted to make any individualized determination to support this part of its request. The city contends that the recreational easement along the greenway is only ancillary to the city’s chief purpose in controlling flood hazards. It further asserts that unlike the residential property at issue in Nollan, petitioner’s property is commercial in character and, therefore, her right to exclude others is compromised. Brief for Respondent 41, quoting United States v. Orito, 413 U. S. 139, 142 (1973) (“ ‘The Constitution extends special safeguards to the privacy of the home’”). The city maintains that “[t]here is nothing.to suggest that preventing [petitioner] from prohibiting [the easements] will unreasonably impair the value of [her] property as a [retail store].” PruneYard Shopping Center v. Robins, 447 U. S. 74, 83 (1980). Admittedly, petitioner wants to build a bigger store to attract members of the public to her property. She also wants, however, to be able to control the time and manner in which they enter. The recreational easement on the greenway is different in character from the exercise of state-protected rights of free expression and petition that we permitted in PruneYard. In PruneYard, we held that a major private shopping center that attracted more than 25,000 daily patrons had to provide access to persons exercising their state constitutional rights to distribute pamphlets and ask passers-by to sign their petitions. Id., at 85. We based our decision, in part, on the fact that the shopping center “may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions.” Id., at 83. By contrast, the city wants to impose a permanent recreational easement upon petitioner’s property that borders Fanno Creek. Petitioner would lose all rights to regulate the time in which the public entered onto the greenway, regardless of any interference it might pose with her retail store. Her right to exclude would not be regulated, it would be eviscerated. If petitioner’s proposed development had somehow encroached on existing greenway space in the city, it would have been reasonable to require petitioner to provide some alternative greenway space for the public either on her property or elsewhere. See Nollan, 483 U. S., at 836 (“Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission’s assumed power to forbid construction of the house in order to protect the public’s view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end”). But that is not the case here. We conclude that the findings upon which the city relies do not show the required reasonable relationship between the floodplain easement and the petitioner’s proposed new building. With respect to the pedestrian/bicycle pathway, we have no doubt that the city was correct in finding that the larger retail sales facility proposed by petitioner will increase traffic on the streets of the Central Business District. The city estimates that the proposed development would generate roughly 435 additional trips per day. Dedications for streets, sidewalks, and other public ways are generally reasonable exactions to avoid excessive congestion from a proposed property use. But on the record before us, the city has not met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by petitioner’s development reasonably relate to the city’s requirement for a dedication of the pedestrian/bicycle pathway easement. The city simply found that the creation of the pathway “could offset some of the traffic demand... and lessen the increase in traffic congestion.” As Justice Peterson of the Supreme Court of Oregon explained in his dissenting opinion, however, “[t]he findings of fact that the bicycle pathway system ‘could offset some of the traffic demand’ is a far cry from a finding that the bicycle pathway system will, or is likely to, offset some of the traffic demand.” 317 Ore., at 127, 854 P. 2d, at 447 (emphasis in original). No precise mathematical calculation is required, but the city must make some effort to quantify its findings in support of the dedication for the pedestrian/bicycle pathway beyond the conclusory statement that it could offset some of the traffic demand generated. IV Cities have long engaged in the commendable task of land use planning, made necessary by increasing urbanization, particularly in metropolitan areas such as Portland. The city’s goals of reducing flooding hazards and traffic congestion, and providing for public greenways, are laudable, but there are outer limits to how this may be done. “A strong public desire to improve the public condition [will not] warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Pennsylvania Coal, 260 U. S., at 416. The judgment of the Supreme Court of Oregon is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice Stevens, with whom Justice Blackmun and Justice Ginsburg join, dissenting. The record does not tell us the dollar value of petitioner Florence Dolan’s interest in excluding the public from the greenway adjacent to her hardware business. The mountain of briefs that the case has generated nevertheless makes it obvious that the pecuniary value of her victory is far less important than the rule of law that this case has been used to establish. It is unquestionably an important case. Certain propositions are not in dispute. The enlargement of the Tigard unit in Dolan’s chain of hardware stores will have an adverse impact on the city’s legitimate and substantial interests in controlling drainage in Fanno Creek and minimizing traffic congestion in Tigard’s business district. That impact is sufficient to justify an outright denial of her application for approval of the expansion. The city has nevertheless agreed to grant Dolan’s application if she will comply with two conditions, each of which admittedly will mitigate the adverse effects of her^ proposed development. The disputed question is whether the city has violated the Fourteenth Amendment to the Federal Constitution by refusing to allow Dolan’s planned construction to proceed unless those conditions are met. The Court is correct in concluding that the city may not attach arbitrary conditions to a building permit or to a variance even when it can rightfully deny the application outright. I also agree that state court decisions dealing with ordinances that govern municipal development plans provide useful guidance in a case of this kind. Yet the Court’s description of the doctrinal underpinnings of its decision, the phrasing of its fledgling test of “rough proportionality,” and the application of that test to this case run contrary to the traditional treatment of these cases and break considerable and unpropitious new ground. I Candidly acknowledging the lack of federal precedent for its exercise in rulemaking, the Court purports to find guidance in 12 “representative” state court decisions. To do so is certainly appropriate. The state cases the Court consults, however, either fail to support or decidedly undermine the Court’s conclusions in key respects. First, although discussion of the state cases permeates the Court’s analysis of the appropriate test Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

D

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Fortas delivered the opinion of the Court. Petitioner John F. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old, attended high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John’s sister, was a 13-year-old student in junior high school. In December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home. The group determined to publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year’s Eve. Petitioners and their parents had previously engaged in similar activities, and they decided to participate in the program. The principals of the Des Moines schools became aware of the plan to wear armbands. On December 14, 1965, they met and adopted a policy that any student wearing an armband to school would be asked to remove it, and if he refused he would be suspended until he returned without the armband. Petitioners were aware of the regulation that the school authorities adopted. On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore his armband the next day. They were all sent home and suspended from school until they would come back without their armbands. They did not return to school until after the planned period for wearing armbands had expired — that is, until after New Year’s Day. This complaint was filed in the United States District Court by petitioners, through their fathers, under § 1983 of Title 42 of the United States Code. It prayed for an injunction restraining the respondent school officials and the respondent members of the board of directors of the school district from disciplining the petitioners, and it sought nominal damages. After an evidentiary hearing the District Court dismissed the complaint. It upheld the constitutionality of the school authorities' action on the ground that it was reasonable in order to prevent disturbance of school discipline. 258 F. Supp. 971 (1966). The court referred to but expressly declined to follow the Fifth Circuit’s holding in a similar ease that the wearing of symbols like the armbands cannot be prohibited unless it “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.” Burnside v. Byars, 363 F. 2d 744, 749 (1966). On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court was equally divided, and the District Court’s decision was accordingly affirmed, without opinion. 383 F. 2d 988 (1967). We granted certiorari. 390 U.S. 942 (1968). I. The District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. See West Virginia v. Barnette, 319 U.S. 624 (1943); Stromberg v. California, 283 U.S. 359 (1931). Cf. Thornhill v. Alabama, 310 U.S. 88 (1940); Edwards v. South Carolina, 372 U.S. 229 (1963); Brown v. Louisiana, 383 U.S. 131 (1966). As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to “pure speech” which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. Cf. Cox v. Louisiana, 379 U.S. 536, 555 (1965); Adderley v. Florida, 385 U.S. 39 (1966). First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years. In Meyer v. Nebraska, 262 U.S. 390 (1923), and Bartels v. Iowa, 262 U.S. 404 (1923), this Court, in opinions by Mr. Justice McReynolds, held that the Due Process Clause of the Fourteenth Amendment prevents States from forbidding the teaching of a foreign language to young students. Statutes to this effect, the Court held, unconstitutionally interfere with the liberty of teacher, student, and parent. See also Pierce v. Society of Sisters, 268 U.S. 510 (1925); West Virginia v. Barnette, 319 U.S. 624 (1943); McCollum v. Board of Education, 333 U.S. 203 (1948); Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (concurring opinion); Sweezy v. New Hampshire, 354 U.S. 234 (1957); Shelton v. Tucker, 364 U.S. 479, 487 (1960); Engel v. Vitale, 370 U.S. 421 (1962); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967); Epperson v. Arkansas, ante, p. 97 (1968). In West Virginia v. Barnette, supra, this Court held that under the First Amendment, the student in public school may not be compelled to salute the flag. Speaking through Mr. Justice Jackson, the Court said: “The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures — Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” 319 U.S., at 637. On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. See Epperson v. Arkansas, supra, at 104; Meyer v. Nebraska, supra, at 402. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities. II. The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment. Cf. Ferrell v. Dallas Independent School District, 392 F. 2d 697 (1968); Pugsley v. Sellmeyer, 158 Ark. 247, 250 S. W. 538 (1923). It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to “pure speech.” The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students. Only a few of the 18,000 students in the school system wore the black armbands. Only five students were suspended for wearing them. There is no indication that the work of the schools or any class was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises. The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U. S. 1 (1949); and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society. In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the prohibition cannot be sustained. Burnside v. Byars, supra, at 749. In the present case, the District Court made no such finding, and our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students. Even an official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption. On the contrary, the action of the school authorities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation’s part in the conflagration in Vietnam. It is revealing, in this respect, that the meeting at which the school principals decided to issue the contested regulation was called in response to a student’s statement to the journalism teacher in one of the schools that he wanted to write an article on Vietnam and have it published in the school paper. (The student was dissuaded.) It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol — black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam — was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible. In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school officials cannot suppress “expressions of feelings with which they do not wish to contend.” Burnside v. Byars, supra, at 749. In Meyer v. Nebraska, supra, at 402, Mr. Justice McReynolds expressed this Nation’s repudiation of the principle that a State might so conduct its schools as to “foster a homogeneous people.” He said: “In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution.” This principle has been repeated by this Court on numerous occasions during the intervening years. In Keyishian v. Board of Regents, 385 U. S. 589, 603, Mr. Justice Brennan, speaking for the Court, said: “ 'The vigilant protection of constitutional freedoms is nowhere more vital than in thé community of American schools.' Shelton v. Tucker, [364 U. S. 479,] at 487. The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.’ ” The principle of these cases is not confined to the supervised and ordained discussion which takes place in the classroom. The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without “materially and substantially interfering] with the requirements of appropriate discipline in the operation of the school” and without colliding with the rights of others. Burnside v. Byars, supra, at 749. But conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. Cf. Blackwell v. Issaquena County Board of Education, 363 F. 2d 749 (C. A. 5th Cir. 1966). Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom. If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be justified by a showing that the students’ activities would materially and substantially disrupt the work and discipline of the school. Cf. Ham mond v. South Carolina State College, 272 F. Supp. 947 (D. C. S. C. 1967) (orderly protest meeting on state college campus); Dickey v. Alabama State Board of Education, 273 F. Supp. 613 (D. C. M. D. Ala. 1967) (expulsion of student editor of college newspaper). In the circumstances of the present case, the prohibition of the silent, passive “witness of the armbands,” as one of the children called it, is no less offensive to the Constitution’s guarantees. As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression. We express no opinion as to the form of relief which should be granted, this being a matter for the lower courts to determine. We reverse and remand for further proceedings consistent with this opinion. Reversed and remanded. In Burnside, the Fifth Circuit ordered that high school authorities be enjoined from enforcing a regulation forbidding students to wear “freedom buttons.” It is instructive that in Blackwell v. Issaquena County Board of Education, 363 F. 2d 749 (1966), the same panel on the same day reached the opposite result on different facts. It declined to enjoin enforcement of such a regulation in another high school where the students wearing freedom buttons harassed students who did not wear them and created much disturbance. Hamilton v. Regents of Univ. of Cal., 293 U. S. 245 (1934), is sometimes cited for the broad proposition that the State may attach conditions to attendance at a state university that require individuals to violate their religious convictions. The case involved dismissal of members of a religious denomination from a land grant college for refusal to participate in military training. Narrowly viewed, the case turns upon the Court’s conclusion that merely requiring a student to participate in school training in military “science” could not conflict with his constitutionally protected freedom of conscience. The decision cannot be taken as establishing that the State may impose and enforce any conditions that it chooses upon attendance at public institutions of learning, however violative they may be of fundamental constitutional guarantees. See, e. g., West Virginia v. Barnette, 319 U. S. 624 (1943); Dixon v. Alabama State Board of Education, 294 F. 2d 150 (C. A. 5th Cir. 1961); Knight v. State Board of Education, 200 F. Supp. 174 (D. C. M. D. Tenn. 1961); Dickey v. Alabama State Board of Education, 273 F. Supp. 613 (D. C. M. D. Ala. 1967). See also Note, Unconstitutional Conditions, 73 Harv. L. Rev. 1595 (1960); Note, Academic Freedom, 81 Harv. L. Rev. 1045 (1968). The only suggestions ol; fear of disorder in the report are these: “A former student of one of our high schools was killed in Viet Nam. Some of his friends are still in school and it was felt that if any kind of a demonstration existed, it might evolve into something which would be difficult- to control.” “Students at one of the high schools were heard to say they would wear arm bands of other colors if the black bands prevailed.” Moreover, the testimony of school authorities at trial indicates that it was not fear of disruption that motivated the regulation prohibiting the armbands; the regulation was directed against “the principle of the demonstration” itself. School authorities simply felt that “the schools are no place for demonstrations,” and if the students “didn’t like the way our elected officials were handling things, it should be handled with the ballot box and not in the halls of our public schools.” The District Court found that the school authorities, in prohibiting black armbands, were influenced by the fact that “[t]he Viet Nam war and the involvement of the United States therein has been the subject of a major controversy for some time. When the arm band regulation involved herein was promulgated, debate over the Viet Nam war had become vehement in many localities. A protest march against the war had been recently held in Washington, D. C. A wave of draft card burning incidents protesting the war had swept the country. At that time two highly publicized draft card burning cases were pending in this Court. Both individuals supporting the war and those opposing it were quite vocal in expressing their views.” 258 F. Supp., at 972-973. After the principals’ meeting, the director of secondary education and the principal of the high school informed the student that the principals were opposed to publication of his article. They reported that “we felt that it was a very friendly conversation, although we did not feel that we had convinced the student that our decision was a just one.” In Hammond v. South Carolina State College, 272 F. Supp. 947 (D. C. S. C. 1967), District Judge Hemphill had before him a case involving a meeting on campus of 300 students to express their views on school practices. He pointed out that a school is not like a hospital or a jail enclosure. Cf. Cox v. Louisiana, 379 U. S. 536 (1965); Adderley v. Florida, 385 U. S. 39 (1966). It is a public place, and its dedication to specific uses does not imply that the constitutional rights of persons entitled to be there are to be gauged as if the premises were purely private property. Cf. Edwards v. South Carolina, 372 U. S. 229 (1963); Brown v. Louisiana, 383 U. S. 131 (1966). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

C

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Marshall delivered the opinion of the Court. Respondent Dwight Dion, Sr., a member of the Yankton Sioux Tribe, was convicted of shooting four bald eagles on the Yankton Sioux Reservation in South Dakota in violation of the Endangered Species Act, 87 Stat. 884, as amended, 16 U. S. C. § 1531 et seq. (1982 ed. and Supp. II). The District Court dismissed before trial a charge of shooting a golden eagle in violation of the Bald Eagle Protection Act, 54 Stat. 250, 16 U. S. C. § 668 et seq. (Eagle Protection Act). Dion was also convicted of selling carcasses and parts of eagles and other birds in violation of the Eagle Protection Act and the Migratory Bird Treaty Act, 40 Stat. 755, as amended, 16 U. S. C. § 703 et seq. The Court of Appeals for the Eighth Circuit affirmed all of Dion’s convictions except those for shooting bald eagles in violation of the Endangered Species Act. 752 F. 2d 1261, 1270 (1985) (en banc); 762 F. 2d 674, 694 (1985) (panel opinion). As to those, it stated that Dion could be convicted only upon a jury determination that the birds were killed for commercial purposes. 752 F. 2d, at 1270. It also affirmed the District Court’s dismissal of the charge of shooting a golden eagle in violation of the Eagle Protection Act. Ibid. We granted certiorari, 474 U. S. 900 (1985), and we now reverse the judgment of the Court of Appeals insofar as it reversed Dion’s convictions under the Endangered Species Act and affirmed the dismissal of the charge against him under the Eagle Protection Act. I The Eagle Protection Act by its terms prohibits the hunting of the bald or golden eagle anywhere within the United States, except pursuant to a permit issued by the Secretary of the Interior. The Endangered Species Act imposes an equally stringent ban on the hunting of the bald eagle. The Court of Appeals for the Eighth Circuit, however, sitting en banc, held that members of the Yankton Sioux Tribe have a treaty right to hunt bald and golden eagles within the Yankton Reservation for noncommercial purposes. It further held that the Eagle Protection Act and Endangered Species Act did not abrogate this treaty right. It therefore directed that Dion’s convictions for shooting bald eagles be vacated, since neither the District Court nor the jury made any explicit finding whether the killings were for commercial or noncommercial purposes. The Court of Appeals relied on an 1858 treaty signed by the United States and by representatives of the Yankton Tribe. Treaty with the Yancton (1858 spelling) Sioux, Apr. 19, 1858, 11 Stat. 743. Under that treaty, the Yankton ceded to the United States all but 400,000 acres of the land then held by the Tribe. The treaty bound the Yanktons to remove to, and settle on, their reserved land within one year. The United States in turn agreed to guarantee the Yanktons quiet and undisturbed possession of their reserved land, and to pay to the Yanktons, or expend for their benefit, various moneys in the years to come. The area thus reserved for the Tribe was a legally constituted Indian reservation, see Minnesota v. Hitchcock, 185 U. S. 373, 389-390 (1902); Wood v. Jameson, 130 N. W. 2d 95 (S. D. 1964). The treaty did not place any restriction on the Yanktons’ hunting rights on their reserved land. All parties to this litigation agree that the treaty rights reserved by the Yankton included the exclusive right to hunt and fish on their land. See Brief for United States 19; Brief for Respondent 7. As a general rule, Indians enjoy exclusive treaty rights to hunt and fish on lands reserved to them, unless such rights were clearly relinquished by treaty or have been modified by Congress. F. Cohen, Handbook of Federal Indian Law 449 (1982) (hereinafter Cohen). These rights need not be expressly mentioned in the treaty. See Menominee Tribe v. United States, 391 U. S. 404 (1968); Alaska Pacific Fisheries v. United States, 248 U. S. 78 (1918). Those treaty rights, however, little avail Dion if, as the Solicitor General argues, they were subsequently abrogated by Congress. We find that they were. II It is long settled that “the provisions of an act of Congress, passed in the exercise of its constitutional authority, ... if clear and explicit, must be upheld by the courts, even in contravention of express stipulations in an earlier treaty” with a foreign power. Fong Yue Ting v. United States, 149 U. S. 698, 720 (1893); cf. Goldwater v. Carter, 444 U. S. 996 (1979). This Court applied that rule to congressional abrogation of Indian treaties in Lone Wolf v. Hitchcock, 187 U. S. 553, 566 (1903). Congress, the Court concluded, has the power “to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so.” Ibid. We have required that Congress’ intention to abrogate Indian treaty rights be clear and plain. Cohen 223; see also United States v. Santa Fe Pacific R. Co., 314 U. S. 339, 353 (1941). “Absent explicit statutory language, we have been extremely reluctant to find congressional abrogation of treaty rights . . . .” Washington v. Washington Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 690 (1979). We do not construe statutes as abrogating treaty rights in “a backhanded way,” Menominee Tribe v. United States, 391 U. S., at 412; in the absence of explicit statement, “‘the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.’” Id., at 413, quoting Pigeon River Co. v. Cox Co., 291 U. S. 138, 160 (1934). Indian treaty rights are too fundamental to be easily cast aside. We have enunciated, however, different standards over the years for determining how such a clear and plain intent must be demonstrated. In some cases, we have required that Congress make “express declaration” of its intent to abrogate treaty rights. See Leavenworth, L., & G. R. Co. v. United States, 92 U. S. 733, 741-742 (1876); see also Wilkinson & Volkman 627-630, 645-659. In other cases, we have looked to the statute’s “ ‘legislative history’ ” and “ ‘surrounding circumstances’” as well as to “‘the face of the Act.’” Rosebud Sioux Tribe v. Kneip, 430 U. S. 584, 587 (1977), quoting Mattz v. Arnett, 412 U. S. 481, 505 (1973). Explicit statement by Congress is preferable for the purpose of ensuring legislative accountability for the abrogation of treaty rights, cf. Seminole Nation v. United States, 316 U. S. 286, 296-297 (1942). We have not rigidly interpreted that preference, however, as a per se rule; where the evidence of congressional intent to abrogate is sufficiently compelling, “the weight of authority indicates that such an intent can also be found by a reviewing court from clear and reliable evidence in the legislative history of a statute.” Cohen 223. What is essential is clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty. A The Eagle Protection Act renders it a federal crime to “take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner any bald eagle commonly known as the American eagle or any golden eagle, alive or dead, or any part, nest, or egg thereof.” 16 U. S. C. § 668(a). The prohibition is “sweepingly framed”; the enumeration of forbidden acts is “exhaustive and careful.” Andrus v. Allard, 444 U. S. 51, 56 (1979). The Act, however, authorizes the Secretary of the Interior to permit the taking, possession, and transportation of eagles “for the religious purposes of Indian tribes,” and for certain other narrow purposes, upon a determination that such taking, possession, or transportation is compatible with the preservation of the bald eagle or the golden eagle. 16 U. S. C. § 668a. Congressional intent to abrogate Indian treaty rights to hunt bald and golden eagles is certainly strongly suggested on the face of the Eagle Protection Act. The provision allowing taking of eagles under permit for the religious purposes of Indian tribes is difficult to explain except as a reflection of an understanding that the statute otherwise bans the taking of eagles by Indians, a recognition that such a prohibition would cause hardship for the Indians, and a decision that that problem should be solved not by exempting Indians from the coverage of the statute, but by authorizing the Secretary to issue permits to Indians where appropriate. The legislative history of the statute supports that view. The Eagle Protection Act was originally passed in 1940, and did not contain any explicit reference to Indians. Its prohibitions related only to bald eagles; it cast no shadow on hunting of the more plentiful golden eagle. In 1962, however, Congress considered amendments to the Eagle Protection Act extending its ban to the golden eagle as well. As originally drafted by the staff of the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, the amendments simply would have added the words “or any golden eagle” at two places in the Act where prohibitions relating to the bald eagle were described. Miscellaneous Fish and Wildlife Legislation: Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 87th Cong., 2d Sess., 1 (1962) (hereinafter House Hearings). Before the start of hearings on the bill, however, the Subcommittee received a letter from Assistant Secretary of the Interior Frank Briggs on behalf of the Interior Department. The Interior Department supported the proposed bill. It noted, however, the following concern: “The golden eagle is important in enabling many Indian tribes, particularly those in the Southwest, to continue ancient customs and ceremonies that are of deep religious or emotional significance to them. We note that the Handbook of American Indians (Smithsonian Institution, 1912) volume I, page 409, states in part, as follows: “ ‘Among the many birds held in superstitious and appreciative regard by the aborigines of North America, the eagle, by reason of its majestic, solitary, and mysterious nature, became an especial object of worship. This is expressed in the employment of the eagle by the Indian for religious and esthetic purposes only. “There are frequent reports of the continued veneration of eagles and of the use of eagle feathers in religious ceremonies of tribal rites. The Hopi, Zuni, and several of the Pueblo groups of Indians in the Southwest have great interest in and strong feelings concerning eagles. In the circumstances, it is evident that the Indians are deeply interested in the preservation of both the golden and the bald eagle. If enacted, the bill should therefore permit the Secretary of the Interior, by regulation, to allow the use of eagles for religious purposes by Indian tribes.” House Hearings 2-3. The House Committee reported out the bill. In setting out the need for the legislation, it explained in part: “Certain feathers of the golden eagle are important in religious ceremonies of some Indian tribes and a large number of the birds are killed to obtain these feathers, as well as to provide souvenirs for tourists in the Indian country. In addition, they are actively hunted by bounty hunters in Texas and some other States. As a result of these activities if steps are not taken as contemplated in this legislation, there is grave danger that the golden eagle will completely disappear.” H. R. Rep. No. 1450, 87th Cong., 2d Sess., 2 (1962). The Committee also reprinted Assistant Secretary Briggs’ letter in its Report, id., at 3-5, and adopted an exception for Indian religious use drafted by the Interior Department. The bill as reported out of the House Committee thus made three major changes in the law, along with other more technical ones. It extended the law’s ban to golden eagles. It provided that the Secretary may exempt, by permit, takings of bald or golden eagles “for the religious purposes of Indian tribes.” And it added a final proviso: “Provided, That bald eagles may not be taken for any purpose unless, prior to such taking, a permit to do so is procured from the Secretary of the Interior.” Id., at 7. The bill, as amended, passed the House and was reported to the Senate Committee on Commerce. At the Senate hearings, representatives of the Interior Department reiterated their position that, because “the golden eagle is an important part of the ceremonies and religion of many Indian tribes,” the Secretary should be authorized to allow the use of eagles for religious purposes by Indian tribes. Protection for the Golden Eagle: Hearings before a Subcommittee of the Senate Committee on Commerce, 87th Cong., 2d Sess., 23 (1962). The Senate Committee agreed, and passed the House bill with an additional amendment allowing the Secretary to authorize permits for the taking of golden eagles that were preying on livestock. That Committee again reprinted Assistant Secretary Briggs’ letter, S. Rep. No. 1986, 87th Cong., 2d Sess., 5-7 (1962), and summarized the bill as follows: “The resolution as hereby reported would bring the golden eagle under the 1940 act, allow their taking under permit for the religious use of the various Indian tribes (their feathers are an important part of Indian religious rituals) and upon request of a Governor of any State, be taken for the protection of livestock and game.” Id., at 3-4. The bill passed the Senate, and was concurred in by the House, with little further discussion. It seems plain to us, upon reading the legislative history as a whole, that Congress in 1962 believed that it was abrogating the rights of Indians to take eagles. Indeed, the House Report cited the demand for eagle feathers for Indian religious ceremonies as one of the threats to the continued survival of the golden eagle that necessitated passage of the bill. See supra, at 742. Congress expressly chose to set in place a regime in which the Secretary of the Interior had control over Indian hunting, rather than one in which Indian on-reservation hunting was unrestricted. Congress thus considered the special cultural and religious interests of Indians, balanced those needs against the conservation purposes of the statute, and provided a specific, narrow exception that delineated the extent to which Indians would be permitted to hunt the bald and golden eagle. Respondent argues that the 1962 Congress did not in fact view the Eagle Protection Act as restricting Indian on-reservation hunting. He points to an internal Interior Department memorandum circulated in 1962 stating, with little analysis, that the Eagle Protection Act did not apply within Indian reservations. Memorandum from Assistant Solicitor Vaughn, Branch of Fish and Wildlife, Office of the Solicitor to the Director, Bureau of Sport Fisheries and Wildlife, Apr. 26, 1962. We have no reason to believe that Congress was aware of the contents of the Vaughn memorandum. More importantly, however, we find respondent’s contention that the 1962 Congress did not understand the Act to ban all Indian hunting of eagles simply irreconcilable with the statute on its face. Respondent argues, and the Eighth Circuit agreed, that the provision of the statute granting permit authority is not necessarily inconsistent with an intention that Indians would have unrestricted ability to hunt eagles while on reservations. Respondent construes that provision to allow the Secretary to issue permits to non-Indians to hunt eagles “for Indian religious purposes,” and supports this interpretation by pointing out testimony during the hearings to the effect that large-scale eagle bounty hunters sometimes sold eagle feathers to Indian tribes. We do not find respondent’s argument credible. Congress could have felt such a provision necessary only if it believed that Indians, if left free to hunt eagles on reservations, would nonetheless be unable to satisfy their own needs and would be forced to call on non-Indians to hunt on their behalf. Yet there is nothing in the legislative history that even remotely supports that patronizing and strained view. Indeed, the Interior Department immediately after the passage of the 1962 amendments adopted regulations authorizing permits only to “individual Indians who are authentic, bona fide practitioners of such religion.” 28 Fed. Reg. 976 (1963). Congress’ 1962 action, we conclude, reflected an unmistakable and explicit legislative policy choice that Indian hunting of the bald or golden eagle, except pursuant to permit, is inconsistent with the need to preserve those species. We therefore read the statute as having abrogated that treaty right. B Dion also asserts a treaty right to take bald eagles as a defense to his Endangered Species Act prosecution. He argues that the evidence that Congress intended to abrogate treaty rights when it passed the Endangered Species Act is considerably more slim than that relating to the Eagle Protection Act. The Endangered Species Act and its legislative history, he points out, are to a great extent silent regarding Indian hunting rights. In this case, however, we need not resolve the question of whether the Congress in the Endangered Species Act abrogated Indian treaty rights. We conclude that Dion’s asserted treaty defense is barred in any event. Dion asserts that he is immune from Endangered Species Act prosecution because he possesses a treaty right to hunt and kill bald eagles. We have held, however, that Congress in passing and amending the Eagle Protection Act divested Dion of his treaty right to hunt bald eagles. He therefore has no treaty right to hunt bald eagles that he can assert as a defense to an Endangered Species Act charge. We do not hold that when Congress passed and amended the Eagle Protection Act, it stripped away Indian treaty protection for conduct not expressly prohibited by that statute. But the Eagle Protection Act and the Endangered Species Act, in relevant part, prohibit exactly the same conduct, and for the same reasons. Dion here asserts a treaty right to engage in precisely the conduct that Congress, overriding Indian treaty rights, made criminal in the Eagle Protection Act. Dion’s treaty shield for that conduct, we hold, was removed by that statute, and Congress’ failure to discuss that shield in the context of the Endangered Species Act did not revive that treaty right. It would not promote sensible law to hold that while Dion possesses no rights derived from the 1858 treaty that bar his prosecution under the Eagle Protection Act for killing bald eagles, he nonetheless possesses a right to hunt bald eagles, derived from that same treaty, that bars his Endangered Species Act prosecution for the same conduct. ■ Even if Congress did not address Indian treaty rights in the Endangered Species Act sufficiently expressly to effect a valid abrogation, therefore, respondent can assert no treaty defense to a prosecution under that Act for a taking already explicitly prohibited under the Eagle Protection Act. Ill We hold that the Court of Appeals erred in recognizing Dion’s treaty defense to his Eagle Protection Act and Endangered Species Act prosecutions. For the reasons stated in n. 3, supra, we do not pass on the claim raised by amici that the Eagle Protection Act, if read to abrogate Indian treaty rights, invades religious freedom. Cf. United States v. Abeyta, 632 F. Supp. 1301 (NM 1986). Nor do we address respondent’s argument, raised for the first time in this Court, that the statutes under which he was convicted do not authorize separate convictions for taking and for selling the same birds. The judgment of the Court of Appeals is reversed in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. The jury verdict at trial did not conclusively establish that Dion is a member of the Tribe or that the killings took place on the reservation. See 752 F. 2d 1261, 1270 (1985) (indicating that those questions remain open for determination on remand). Both parties, however, agree in this Court that Dion is a member of the Yankton Sioux Tribe. Brief for United States 10; Brief for Respondent 2. Dion testified at trial that the birds were all killed on the reservation, the Eighth Circuit assumed that fact for the purposes of its opinion, and we shall do the same. The court held that tribal members have no treaty right to sell eagles, or to hunt eagles for commercial purposes. 752 F. 2d, at 1264-1265. Dion does not challenge that holding here, and its validity is not before us. On remand from the en banc court, an Eighth Circuit panel rejected a religious freedom claim raised by Dion. Dion does not pursue that claim here, and accordingly we do not consider it. A statement made by the panel in rejecting that claim, though, easts some doubt on whether the issue of whether Dion had a treaty right to kill eagles for noncommercial purposes is squarely before us. The panel stated: “The record reveals that Dion, Sr. was killing eagles and other protected birds for commercial gain . . . .” 762 F. 2d 674, 680 (1985). Notwithstanding its statement that Dion’s killings were for commercial gain, apparently inconsistent with the en banc court’s refusal to pass on that issue, it issued a judgment vacating Dion’s convictions for shooting bald eagles “pursuant to the opinion of this Court en banc.” Id., at 694. We find that this case properly presents the issue whether killing eagles for noncommercial purposes is outside the scope of the Eagle Protection Act and fhe Endangered Species Act. The Eighth Circuit panel did not disturb the en banc court’s holding that Dion cannot be convicted absent a jury determination of whether the killings were for a commercial purpose, and vacated his convictions for shooting bald eagles because the jury made no such finding.' The Solicitor General argues that Dion’s convictions should have been affirmed whether the killings were for commercial or noncommercial purposes. The correctness of the holding below that killing for noncommercial purposes is not punishable, therefore, is squarely before us. Such treaty rights can be asserted by Dion as an individual member of the Tribe. See United States v. Winans, 198 U. S. 371, 381 (1905); Kimball v. Callahan, 590 F. 2d 768, 773 (CA9), cert. denied, 444 U. S. 826 (1979); see also United States v. Felter, 752 F. 2d 1505, 1509 (CA10 1985). We therefore do not address the Solicitor General’s argument that Dion’s hunting is outside the scope of the treaty right because that right does not protect hunting “to extinction.” See also Wilkinson & Volkman, Judicial Review of Indian Treaty Abrogation: “As Long as Water Flows, or Grass Grows Upon the Earth”— How Long a Time Is That?, 63 Calif. L. Rev. 601 (1975) (hereinafter Wilkinson & Volkman). Various witnesses, during the course of the Subcommittee hearings, gave testimony relating to the effect of the proposed ban on Indian tribes. See House Hearings 15, 20, 29, 34, 35, 39, 47. Respondent’s argument that Congress in amending the Eagle Protection Act meant to benefit nontreaty tribes is also flawed. Indian reservations created by statute, agreement, or executive order normally carry with them the same implicit hunting rights as those created by treaty. See Cohen 224; Antoine v. Washington, 420 U. S. 194 (1975). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice THOMAS delivered the opinion of the Court. The Leahy-Smith America Invents Act (AIA) bars a person from receiving a patent on an invention that was "in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention." 35 U.S.C. § 102(a)(1). This case requires us to decide whether the sale of an invention to a third party who is contractually obligated to keep the invention confidential places the invention "on sale" within the meaning of § 102(a). More than 20 years ago, this Court determined that an invention was "on sale" within the meaning of an earlier version of § 102(a) when it was "the subject of a commercial offer for sale" and "ready for patenting." Pfaff v. Wells Electronics, Inc ., 525 U.S. 55, 67, 119 S.Ct. 304, 142 L.Ed.2d 261 (1998). We did not further require that the sale make the details of the invention available to the public. In light of this earlier construction, we determine that the reenactment of the phrase "on sale" in the AIA did not alter this meaning. Accordingly, a commercial sale to a third party who is required to keep the invention confidential may place the invention "on sale" under the AIA. I Petitioner Helsinn Healthcare S.A. (Helsinn) is a Swiss pharmaceutical company that makes Aloxi, a drug that treats chemotherapy-induced nausea and vomiting. Helsinn acquired the right to develop palonosetron, the active ingredient in Aloxi, in 1998. In early 2000, it submitted protocols for Phase III clinical trials to the Food and Drug Administration (FDA), proposing to study a 0.25 mg and a 0.75 mg dose of palonosetron. In September 2000, Helsinn announced that it was beginning Phase III clinical trials and was seeking marketing partners for its palonosetron product. Helsinn found its marketing partner in MGI Pharma, Inc. (MGI), a Minnesota pharmaceutical company that markets and distributes drugs in the United States. Helsinn and MGI entered into two agreements: a license agreement and a supply and purchase agreement. The license agreement granted MGI the right to distribute, promote, market, and sell the 0.25 mg and 0.75 mg doses of palonosetron in the United States. In return, MGI agreed to make upfront payments to Helsinn and to pay future royalties on distribution of those doses. Under the supply and purchase agreement, MGI agreed to purchase exclusively from Helsinn any palonosetron product approved by the FDA. Helsinn in turn agreed to supply MGI however much of the approved doses it required. Both agreements included dosage information and required MGI to keep confidential any proprietary information received under the agreements. Helsinn and MGI announced the agreements in a joint press release, and MGI also reported the agreements in its Form 8-K filing with the Securities and Exchange Commission. Although the 8-K filing included redacted copies of the agreements, neither the 8-K filing nor the press releases disclosed the specific dosage formulations covered by the agreements. On January 30, 2003, nearly two years after Helsinn and MGI entered into the agreements, Helsinn filed a provisional patent application covering the 0.25 mg and 0.75 mg doses of palonosetron. Over the next 10 years, Helsinn filed four patent applications that claimed priority to the January 30, 2003, date of the provisional application. Helsinn filed its fourth patent application-the one relevant here-in May 2013, and it issued as U.S. Patent No. 8,598,219 ('219 patent). The '219 patent covers a fixed dose of 0.25 mg of palonosetron in a 5 ml solution. By virtue of its effective date, the '219 patent is governed by the AIA. See § 101(i). Respondents Teva Pharmaceutical Industries, Ltd., and Teva Pharmaceuticals USA, Inc. (Teva), are, respectively, an Israeli company that manufactures generic drugs and its American affiliate. In 2011, Teva sought approval from the FDA to market a generic 0.25 mg palonosetron product. Helsinn then sued Teva for infringing its patents, including the '219 patent. In defense, Teva asserted that the '219 patent was invalid because the 0.25 mg dose was "on sale" more than one year before Helsinn filed the provisional patent application covering that dose in January 2003. The AIA precludes a person from obtaining a patent on an invention that was "on sale" before the effective filing date of the patent application: "A person shall be entitled to a patent unless ... the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention." 35 U.S.C. § 102(a)(1) (emphasis added). See also § 102(b)(1) (exception for certain disclosures made within a year before the effective filing date). Disclosures described in § 102(a)(1) are often referred to as "prior art." The patent statute in effect before the passage of the AIA included a similar proscription, known as the "on-sale bar": "A person shall be entitled to a patent unless- "(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or "(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States." 35 U.S.C. §§ 102(a) - (b) (2006 ed.) (emphasis added). The District Court determined that the "on sale" provision did not apply. It concluded that, under the AIA, an invention is not "on sale" unless the sale or offer in question made the claimed invention available to the public. Helsinn Healthcare S .A . v. Dr . Reddy's Labs . Ltd ., ---F.Supp.3d ----, ----, ----, 2016 WL 832089, *45, *51 (D.N.J., Mar. 3, 2016). Because the companies' public disclosure of the agreements between Helsinn and MGI did not disclose the 0.25 mg dose, the court determined that the invention was not "on sale" before the critical date. Id ., at ---- - ----, at *51-*52. The Federal Circuit reversed. 855 F.3d 1356, 1360 (2017). It concluded that "if the existence of the sale is public, the details of the invention need not be publicly disclosed in the terms of sale" to fall within the AIA's on-sale bar. Id ., at 1371. Because the sale between Helsinn and MGI was publicly disclosed, it held that the on-sale bar applied. Id ., at 1364, 1371. We granted certiorari to determine whether, under the AIA, an inventor's sale of an invention to a third party who is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention. 585 U.S. ----, 138 S.Ct. 2678, 201 L.Ed.2d 1070 (2018). We conclude that such a sale can qualify as prior art. II A The United States Constitution authorizes Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Art. 1, § 8, cl. 8. Under this grant of authority, Congress has crafted a federal patent system that encourages "the creation and disclosure of new, useful, and nonobvious advances in technology and design" by granting inventors "the exclusive right to practice the invention for a period of years." Bonito Boats, Inc . v. Thunder Craft Boats, Inc ., 489 U.S. 141, 151, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989). To further the goal of "motivating innovation and enlightenment" while also "avoiding monopolies that unnecessarily stifle competition," Pfaff, 525 U.S., at 63, 119 S.Ct. 304 Congress has imposed several conditions on the "limited opportunity to obtain a property right in an idea," Bonito Boats, supra, at 149, 109 S.Ct. 971. One such condition is the on-sale bar, which reflects Congress' "reluctance to allow an inventor to remove existing knowledge from public use" by obtaining a patent covering that knowledge. Pfaff, supra, at 64, 119 S.Ct. 304 ; see also Pennock v. Dialogue, 2 Pet. 1, 19, 7 L.Ed. 327 (1829) (explaining that "it would materially retard the progress of science and the useful arts" to allow an inventor to "sell his invention publicly" and later "take out a patent" and "exclude the public from any farther use than what should be derived under it"). Every patent statute since 1836 has included an on-sale bar. Pfaff, supra, at 65, 119 S.Ct. 304. The patent statute in force immediately before the AIA prevented a person from receiving a patent if, "more than one year prior to the date of the application for patent in the United States," "the invention was ... on sale" in the United States. 35 U.S.C. § 102(b) (2006 ed., Supp. IV). The AIA, as relevant here, retained the on-sale bar and added the catchall phrase "or otherwise available to the public." § 102(a)(1) (2012 ed.) ("A person shall be entitled to a patent unless" the "claimed invention was ... in public use, on sale, or otherwise available to the public ..."). We must decide whether these changes altered the meaning of the "on sale" bar. We hold that they did not. B Congress enacted the AIA in 2011 against the backdrop of a substantial body of law interpreting § 102's on-sale bar. In 1998, we determined that the pre-AIA on-sale bar applies "when two conditions are satisfied" more than a year before an inventor files a patent application. Pfaff, 525 U.S., at 67, 119 S.Ct. 304. "First, the product must be the subject of a commercial offer for sale." Ibid . "Second, the invention must be ready for patenting," which we explained could be shown by proof of "reduction to practice" or "drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to practice the invention." Id ., at 67-68, 119 S.Ct. 304. Although this Court has never addressed the precise question presented in this case, our precedents suggest that a sale or offer of sale need not make an invention available to the public. For instance, we held in Pfaff that an offer for sale could cause an inventor to lose the right to patent, without regard to whether the offer discloses each detail of the invention. E .g ., id ., at 67, 119 S.Ct. 304. Other cases focus on whether the invention had been sold, not whether the details of the invention had been made available to the public or whether the sale itself had been publicly disclosed. E .g ., Consolidated Fruit-Jar Co . v. Wright, 94 U.S. 92, 94, 24 L.Ed. 68 (1877) ( "[A] single instance of sale or of use by the patentee may, under the circumstances, be fatal to the patent ..."); cf. Smith & Griggs Mfg . Co . v. Sprague, 123 U.S. 249, 257, 8 S.Ct. 122, 31 L.Ed. 141 (1887) ("A single sale to another ... would certainly have defeated his right to a patent ..."); Elizabeth v. Pavement Co ., 97 U.S. 126, 136, 24 L.Ed. 1000 (1878) ("It is not a public knowledge of his invention that precludes the inventor from obtaining a patent for it, but a public use or sale of it"). The Federal Circuit-which has "exclusive jurisdiction" over patent appeals, 28 U.S.C. § 1295(a) -has made explicit what was implicit in our precedents. It has long held that "secret sales" can invalidate a patent. E .g ggg., Special Devices, Inc . v. OEA, Inc., 270 F.3d 1353, 1357 (2001) (invalidating patent claims based on "sales for the purpose of the commercial stockpiling of an invention" that "took place in secret"); Woodland Trust v. Flowertree Nursery, Inc ., 148 F.3d 1368, 1370 (1998) ( "Thus an inventor's own prior commercial use, albeit kept secret, may constitute a public use or sale under § 102(b), barring him from obtaining a patent"). In light of this settled pre-AIA precedent on the meaning of "on sale," we presume that when Congress reenacted the same language in the AIA, it adopted the earlier judicial construction of that phrase. See Shapiro v. United States, 335 U.S. 1, 16, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948) ("In adopting the language used in the earlier act, Congress 'must be considered to have adopted also the construction given by this Court to such language, and made it a part of the enactment' "). The new § 102 retained the exact language used in its predecessor statute ("on sale") and, as relevant here, added only a new catchall clause ("or otherwise available to the public"). As amicus United States noted at oral argument, if "on sale" had a settled meaning before the AIA was adopted, then adding the phrase "or otherwise available to the public" to the statute "would be a fairly oblique way of attempting to overturn" that "settled body of law." Tr. of Oral Arg. 28. The addition of "or otherwise available to the public" is simply not enough of a change for us to conclude that Congress intended to alter the meaning of the reenacted term "on sale." Cf. Holder v. Martinez Gutierrez, 566 U.S. 583, 593, 132 S.Ct. 2011, 182 L.Ed.2d 922 (2012) (determining that a reenacted provision did not ratify an earlier judicial construction where the provision omitted the word on which the prior judicial constructions were based). Helsinn disagrees, arguing that our construction reads "otherwise" out of the statute. Citing Paroline v. United States, 572 U.S. 434, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014), and Federal Maritime Comm'n v. Seatrain Lines, Inc ., 411 U.S. 726, 93 S.Ct. 1773, 36 L.Ed.2d 620 (1973), Helsinn contends that the associated-words canon requires us to read "otherwise available to the public" to limit the preceding terms in § 102 to disclosures that make the claimed invention available to the public. As an initial matter, neither of the cited decisions addresses the reenactment of terms that had acquired a well-settled judicial interpretation. And Helsinn's argument places too much weight on § 102's catchall phrase. Like other such phrases, "otherwise available to the public" captures material that does not fit neatly into the statute's enumerated categories but is nevertheless meant to be covered. Given that the phrase "on sale" had acquired a well-settled meaning when the AIA was enacted, we decline to read the addition of a broad catchall phrase to upset that body of precedent. III Helsinn does not ask us to revisit our pre-AIA interpretation of the on-sale bar. Nor does it dispute the Federal Circuit's determination that the invention claimed in the '219 patent was "on sale" within the meaning of the pre-AIA statute. Because we determine that Congress did not alter the meaning of "on sale" when it enacted the AIA, we hold that an inventor's sale of an invention to a third party who is obligated to keep the invention confidential can qualify as prior art under § 102(a). We therefore affirm the judgment of the Federal Circuit. It is so ordered . Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Burton delivered the opinion of the Court. These cases present the question of whether § 1 of the Act of May 10, 1920, authorizes the deportation of an alien under the following circumstances occurring since that Act took effect: (1) The alien was naturalized; (2) while he was a naturalized citizen he was convicted of a conspiracy to violate the Espionage Act of 1917; (3) thereafter, in a denaturalization proceeding, his citizenship was revoked and his certificate of naturalization canceled on the ground that he had procured it by fraud; and (4) the proper authority, after the required hearings, found the alien to be an undesirable resident of the United States and ordered him deported. For the reasons hereinafter stated, we hold that the Act authorizes such deportation. No. 3 — The Eichenlaub Case. Richard Eichenlaub, the relator, was born in Germany in 1905, and entered the United States from there in 1930. He was naturalized as an American citizen in 1936, and has resided in the United States continuously since his reentry in 1937, when he returned from a visit to Germany. In 1941, on his plea of guilty in the United States District Court for the Eastern District of New York, he was convicted of conspiring to act as an agent for a foreign government without having been registered with the Secretary of State. He was sentenced to imprisonment for 18 months and fined $1,000. In 1944, with his consent, a judgment was entered in the United States District Court for the Southern District of New York canceling his citizenship on the ground of fraud in its procurement. Deportation proceedings were then instituted against him and, after a hearing before an Immigration Inspector and a review by the Board of Immigration Appeals, the Attorney General, in 1945, ordered his deportation. This proceeding for a writ of habeas corpus was then filed in the court last named. After hearing, the writ was dismissed and the dismissal was affirmed by the United States Court of Appeals for the Second Circuit. 167 F. 2d 659. We denied certiorari. 335 U. S. 867. However, when the Court of Appeals affirmed the Willumeit case, now before us, on the authority of this case, but called attention to the added impression which had been made upon it by the argument in favor of Willumeit on the point above stated, we vacated our denial of certiorari in this case and granted certiorari in both. 337 U. S. 955. No. 82 — The Willumeit Case. In 1905, Otto A. Willumeit, the relator, was born in Lorraine, which at that time was a part of Germany, but at the time of his arrest for deportation had become a part of France. He entered the United States from there in 1925. In 1931 he was naturalized, and he has resided in the United States continuously since his reentry in 1941 after a visit to Mexico. In 1942, on his plea of guilty in the United States District Court for the District of Connecticut, he was convicted of having conspired to violate that portion of the Espionage Act of 1917 which made it a crime to transmit to an agent of a foreign country information relating to the national defense of this country, with intent or reason to believe that such information would be used to the injury of the United States or to the advantage of a foreign nation. He was sentenced to imprisonment for five years. In 1944, with his consent, a judgment was entered in the United States District Court for the Northern District of Illinois canceling his citizenship on the ground of fraud in its procurement. Deportation proceedings were then instituted against him and, after a hearing before an Immigration Inspector and a review by the Board of Immigration Appeals, the Attorney General, in 1947, ordered his deportation. This proceeding for a writ of habeas corpus was filed in the United States District Court for the Southern District of New York and, after a hearing, the writ was dismissed. The United States Court of Appeals for the Second Circuit affirmed the dismissal on the authority of its decision in the Eichenlaub case. 171 F. 2d 773. Because of the importance of the issue to American citizenship, we granted certiorari. 337 U. S. 955. The proper scope of the Act of 1920 as applied to these cases is found in the ordinary meaning of its words. The material provisions of the Act are as follows: “. . . That aliens of the following classes . . . shall, upon the warrant of the [Attorney General], be taken into his custody and deported ... if the [Attorney General], after hearing, finds that such aliens are undesirable residents of the United States, to wit: . . . . . “(2) All aliens who since August 1, 1914, have been or may hereafter be convicted of any violation or conspiracy to violate any of the following Acts or parts of Acts, the judgment on such conviction having become final, namely: “(a) [The Espionage Act of 1917, as amended]." The above words require that all persons to be deported under this Act shall be “aliens.” They do not limit its scope to aliens who never have been naturalized. They do not exempt those who have secured certificates of naturalization, but then have lost them by court order on the ground of fraud in their procurement. They do not suggest that such persons are not as clearly “aliens” as they were before their fraudulent naturalization. There is no question as to the power of Congress to enact a statute to deport aliens because of past misconduct. That is what Congress did in the Act of 1920, and there is no occasion to restrict its language so as to narrow its plain meaning. The one substantial issue is whether the Act requires that the relators not only must have been “aliens” at the times when they were ordered deported, but that they must also have had that status at the times when they were convicted of designated offenses against the national security. The Government suggests that one route to a conclusion on this issue is to hold that the relators, as a matter of law, were “aliens” when so convicted. The basis it suggests for so holding is that the judicial annulment of the relators’ naturalizations on the ground of fraud in their procurement deprived them of their naturalizations ab initio. Rosenberg v. United States, 60 F. 2d 475 (C. A. 3d Cir.). They thus would be returned to their status as aliens as of the date of their respective naturalizations. Accordingly, they would come within the scope of the Act of 1920, even if that Act were held to require that all offenders subject to deportation under it also must have had an alien status when convicted of the designated offenses. In our opinion, it is not necessary, for the purposes of these cases, to give a retroactive effect to the denaturalization orders. A simpler and equally complete solution lies in the view that the Act does not require that the offenders reached by it must have had the status of aliens at the time they were convicted. As the Act does not state that necessity, it is applicable to all such offenders, including those denaturalized before or after their convictions as well as those who never have been naturalized. The convictions of the relators for designated offenses are important conditions precedent to their being found to be undesirable residents. Their status as aliens is a necessary further condition of their deport-ability. When both conditions are met and, after hearing, the Attorney General finds them to be undesirable residents of the United States, the Act is satisfied. The statutory language which says that “aliens who since August 1, 1914, have been or may hereafter be convicted . . (emphasis supplied) refers to the requirement that the deportations be applicable to all persons who had been convicted of certain enumerated offenses since about the beginning of World War I (August 1, 1914), whether those convictions were had before or after May 10,1920. The crimes listed were not crimes in which convictions depended upon the citizenship, or lack of citizenship, of their perpetrators. In fact, they were crimes against the national security, so that their commission by naturalized citizens might well be regarded by Congress as more reprehensible than their commission by aliens who never had been naturalized. The recognized purpose of the Act was deportation. It is difficult to imagine a reason which would have made it natural or appropriate for Congress to authorize the Attorney General to pass upon the undesirability and deportability of an alien, never naturalized, who had been convicted of espionage, but would prohibit the Attorney General from passing upon the undesirability and deportability of aliens, such as the relators in the instant cases, who had procured certificates of naturalization before their convictions of espionage, but later had been deprived of those certificates on the ground of fraud in their procurement. If there were to be a distinction made in favor of any aliens because they were at one time naturalized citizens, the logical time at which that status would be important would be the time of the commission of the crimes, rather than the purely fortuitous time of their conviction of those crimes. Not even such a distinction finds support in the statute. The failure of Congress to give expression to the distinction, here urged by the relators, between aliens who never have been naturalized and those who have been denaturalized, was not due to unfamiliarity with such matters. In 1920, Congress must have been familiar with the status of aliens denaturalized under § 15 of the Act of June 29, 1906, 34 Stat. 601, see 8 U. S. C. § 736, or expatriated under § 2 of the Citizenship Act of March 2, 1907, 34 Stat. 1228, see 8 U. S. C. § 801. It had had experience with the deportation of undesirable aliens under § 19 of the Immigration Act of February 5, 1917, 39 Stat. 889, see 8 U. S. C. § 155, as well as under other wartime Acts and Proclamations. These Acts did not distinguish between aliens who never had been naturalized, and those who had obtained naturalization by fraud only to lose it by court decree. If the Act of 1920 had been intended to initiate the distinction here urged by the relators, it is likely that the change would have been made by express provision for it. We find nothing in its legislative history that suggests a congressional intent to distinguish between two such groups of undesirable criminals. The Congressional Committee Reports demonstrate that, while this statute was framed in general language and has remained in effect for 30 years, its enactment originally was occasioned by a desire to deport some or all of about 500 aliens who were then interned as dangerous enemy aliens and who might be found, after hearings, to be undesirable residents, and also to deport some or all of about 150 other aliens who, during World War I, had been convicted of violations of the Espionage Act or other national security measures, and who might be found, after hearings, to be undesirable residents. It is hardly conceivable that, under those circumstances, Congress, without expressly saying so, intended to prevent the Secretary of Labor (or his successor, the Attorney General) from deporting alien offenders merely because they had received their respective convictions at times when they held certificates of naturalization, later canceled for fraud. To do so would permit the denaturalized aliens to set up a canceled fraudulent status as a defense, and successfully to claim benefits and advantages under it. Congress, in 1920, evidently wanted to provide a means by which to free the United States of residents who (1) had been or thereafter were convicted of certain offenses against the security of the United States, (2) had been or thereafter were found, after hearing, to be undesirable residents of the United States, and (3) being aliens were subject to deportation. Congress said just that. We have given consideration to such other points as were raised by the relators, but we find that they do not affect the result. The judgment of the Court of Appeals in each case is therefore Affirmed. Mr. Justice Douglas and Mr. Justice Clark took no part in the consideration or decision of these cases. 41 Stat. 593, see 8 U. S. C. § 157. Act of June 15, 1917, 40 Stat. 217. This was under § 37 of the general conspiracy statute, 35 Stat. 1096, 18 U. S. C. (1946 ed.) § 88, now 18 U. S. C. § 371; and under § 3 of Title VIII of the Espionage Act of 1917,40 Stat. 226,22 U. S. C. § 233, as amended by § 6 of the Act of March 28, 1940, 54 Stat. 80, 22 U. S. C. (1946 ed.) § 601, now 18 U. S. C. § 951. Several other defendants stood trial in this proceeding, and were convicted both on this and on a general espionage count. Their conviction was affirmed on this count, but reversed on the other. United States v. Heine, 151 F. 2d 813 (C. A. 2d Cir.). Under § 338 of the Nationality Act of 1940, 54 Stat. 1158-1160, 8 U. S. C. § 738. Under § 1 of the Act of May 10, 1920, 41 Stat. 593-594, 8 U. S. C. § 157. Under the 1940 Reorganization Plan No. Y, 54 Stat. 1238, the functions and powers of the Secretary of Labor under the Act of May 10, 1920, were transferred to the Attorney General. The warrant of deportation recited that the relator had been “found to be a member of the undesirable classes of alien residents enumerated . . .” in the Act of May 10, 1920. While the administrative file is not in the printed record, it was used in argument in the Court of Appeals and is on file here. The Board of Immigration Appeals at page 5 of its opinion found as a fact that the “respondent is an undesirable resident of the United States.” The Court of Appeals, at 167 F. 2d 660, properly recognized this additional matter in the record as justifying its acceptance of the less specific finding recited in the warrant of deportation, and as distinguishing this case from Mahler v. Eby, 264 U. S. 32, 42-46, on that point. This conviction was under §§ 2 and 4 of Title I of the Act of June 15, 1917, 40 Stat. 218-219, 50 U. S. C. (1946 ed.) §§ 32 and 34, now 18 U. S. C. §§ 794 and 2388. See note 4, supra. In this record the final decree of denaturalization is set forth in full. Among other things, it states that the order admitting the relator to citizenship— “is hereby vacated, annulled and set aside, and that the certificate of citizenship, ... is hereby cancelled and declared null and void, . . . and the defendant Otto Albert Willumeit is hereby forever restrained and enjoined from setting up or claiming any rights or privileges, benefits or advantages whatsoever under said order, . . . or the certificate of citizenship issued by virtue of said order.” The order was based not only upon § 1 of the Act of May 10, 1920, 41 Stat. 593-594, 8 U. S. C. § 157, the applicability of which in turn was based upon the relator’s conviction of a violation of the Espionage Act of 1917, but also upon §§ 13 and 14 of the Immigration Act of 1924, 43 Stat. 161-162, as affected by 46 Stat. 581, 50 Stat. 165, the 1940 Reorganization Plan No. V, 54 Stat. 1238, and 60 Stat. 975, 8 U. S. C. §§ 213 and 214, having to do with relator’s reentry into the United States from Mexico in 1941. The Court of Appeals found it unnecessary to pass on this alleged ground for deportation in view of its conclusion as to the other ground. 171 F. 2d at 775. We concur for the same reason. As in the Eichenlaub case, the warrant of deportation apparently stated that it was based on the fact that the relator “has been found to be a member of the undesirable classes of alien residents ....’’ While the warrant is not printed in the record, the findings of the Commissioner of Immigration and of the Board of Immigration Appeals are printed in full. Each contains an express finding that the relator “is an undesirable resident of the United States.” Each states reasons for so concluding. The return to the writ of habeas corpus in this case states that, in addition to issuing the above-described warrant of deportation, the Attorney General ordered the relator interned in 1945 as a dangerous alien enemy and, in 1946, ordered the relator removed from this country for that reason. That proceeding derives its authority from the Alien Enemy Act of July 6, 1798, 1 Stat. 577, as it appears in R. S. § 4067, as affected by 40 Stat. 531, and Presidential Proclamation No. 2655 of July 14, 1945, 3 C. F. R. 1945 Supp. 29; 59 Stat., Pt. 2, 870, see 50 U. S. C. § 21. It thus raises questions as to the “enemy” status of an alien born in Lorraine, which at the time of his birth was a part of Germany, but at the time of his arrest was a part of France. While the Government refers to this Act in its argument in interpreting the Act of May 10, 1920, as in pari materia, it does not press this arrest as a separate ground for dismissal of the writ of habeas corpus. See United States ex rel. Zeller v. Watkins, 167 F. 2d 279 (C. A. 2d Cir.); United States ex rel. Gregoire v. Watkins, 164 F. 2d 137 (C. A. 2d Cir.); United States ex rel. D’Esquiva v. Uhl, 137 F. 2d 903 (C. A. 2d Cir.); United States ex rel. Umecker v. McCoy, 54 F. Supp. 679 (N. D.). The court below did not find it necessary to pass on this issue (171 F. 2d at 775), nor do we. See note 6, supra. The first paragraphs of the Act of May 10, 1920, are, in full, as follows: “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That aliens of the following classes, in addition to those for whose expulsion from the United States provision is made in the existing law, shall, upon the warrant of the Secretary of Labor, be taken into his custody and deported in the manner provided in sections 19 and 20 of the Act of February 5, 1917, entitled 'An Act to regulate the immigration of aliens to, and the residence of aliens in, the United States,’ if the Secretary of Labor, after hearing, finds that such aliens are undesirable residents of the United States, to wit: “(1) All aliens who are now interned under section 4067 of the Revised Statutes of the United States and the proclamations issued by the President in pursuance of said section under date of April 6, 1917, November 16, 1917, December 11, 1917, and April 19, 1918, respectively. “(2) All aliens who since August 1, 1914, have been or may hereafter be convicted of any violation or conspiracy to violate any of the following Acts or parts of Acts, the judgment on such conviction having become final, namely: “(a) An Act entitled ‘An Act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes/ approved June 15, 1917, or the amendment thereof approved May 16, 1918; . . . .” 41 Stat. 593-594, see 8 U. S. C. § 157. The subsequent subdivisions (2) (b) to (h), inclusive, refer to the Explosives Act, 40 Stat. 385; Act Restricting Foreign Travel, 40 Stat. 559; Act Punishing Injury to War Material, 40 Stat. 533; Army Emergency Increase Act, 40 Stat. 80, 884, 955; Act Punishing Threats Against the President, 39 Stat. 919; Trading with the Enemy Act, 40 Stat. 411; and the Seditious Conspiracy Section of the Penal Code, 35 Stat. 1088. The word “alien” is not defined in the Act. It is, however, defined in closely related statutes. The Immigration Act of February 5, 1917, provides: “the word ‘alien’ wherever used in’this Act shall include any person not a native-born or naturalized citizen of the United States; . . . .” 39 Stat. 874, see 8 U. S. C. § 173. The Immigration Act of May 26, 1924, provides: “The term ‘alien’ includes any individual not a native-born or naturalized citizen of the United States, . . . .” 43 Stat. 168, see 8 U. S. C. § 224. These definitions are in effect today. In Title 8 of the United States Code they are included in and are made to apply to the entire chapter on Immigration and that chapter includes as § 157 the Act of May 10, 1920. While the Act also makes no express distinction between its applicability to aliens who never have been naturalized and to those who have been naturalized, but have lost their naturalized citizenship by lawful and voluntary expatriation (see 8 U. S. C. §§ 800-810), the possibility of such a distinction is not before us in the instant cases. The required finding by the Attorney General, after hearing, that any alien who is to be deported is an undesirable resident of the United States prevents the automatic deportation of anyone under this Act without such a hearing and finding. Mahler v. Eby, 264 U. S. 32; Ng Fung Ho v. White, 259 U. S. 276, 280; Bugajewitz v. Adams, 228 U. S. 585; Fong Yue Ting v. United States, 149 U. S. 698, 730. See note 12, supra. “The practice of filing proceedings to cancel certificates of naturalization became widespread immediately after The 1906 Act went into effect. In the fiscal year 1907 there were eighty-six certificates cancelled; in 1908 there were four hundred and fifty-seven; and in 1909, nine hundred and twenty-one. During the thirty years following the effective date of the 1906 Act, more than twelve thousand certificates of naturalization were cancelled on the ground of fraud or on the ground that the order and certificate of naturalization were illegally procured.” Cable, Loss of Citizenship 4-5 (1943). See H. R. Rep. No. 143 and S. Rep. No. 283, 66th Cong., 1st Sess.; 58 Cong. Rec. 3362-3376 (1919); Ludecke v. Watkins, 335 U. S. 160, 167-168, n. 12, 179-181. Compare the injunction included in the final decree of denaturalization quoted in note 8, sufra. Among these is the claim in the Eichenlaub case that the Act of 1920 does not apply to his conviction under the Espionage Act of 1917, because, in substance, the penalty for its violation had been increased in 1940. This contention is without merit. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Scalia announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice O’Connor, and Justice Thomas join. Plaintiffs-appellants Richard Vieth, Norma Jean Vieth, and Susan Furey challenge a map drawn by the Pennsylvania General Assembly establishing districts for the election of congressional Representatives, on the ground that the dis-tricting constitutes an unconstitutional political gerrymander. In Davis v. Bandemer, 478 U. S. 109 (1986), this Court held that political gerrymandering claims are justiciable, but could not agree upon a standard to adjudicate them. The present appeal presents the questions whether our decision in Bandemer was in error, and, if not, what the standard should be. I The facts, as alleged by the plaintiffs, are as follows. The population figures derived from the 2000 census showed that Pennsylvania was entitled to only 19 Representatives in Congress, a decrease in 2 from the Commonwealth’s previous delegation. Pennsylvania’s General Assembly took up the task of drawing a new districting map. At the time, the Republican Party controlled a majority of both state Houses and held the Governor’s office. Prominent national figures in the Republican Party pressured the General Assembly to adopt a partisan redistricting plan as a punitive measure against Democrats for having enacted pro-Democrat redistricting plans elsewhere. The Republican members of Pennsylvania’s House and Senate worked together on such a plan. On January 3, 2002, the General Assembly passed its plan, which was signed into law by Governor Schweiker as Act 1. Plaintiffs, registered Democrats who vote in Pennsylvania, brought suit in the United States District Court for the Middle District of Pennsylvania, seeking to enjoin implementation of Act 1 under Rev. Stat. § 1979, 42 U. S. C. § 1983. Defendants-appellees were the Commonwealth of Pennsylvania and various executive and legislative officers responsible for enacting or implementing Act 1. The complaint alleged, among other things, that the legislation created mal-apportioned districts, in violation of the one-person, one-vote requirement of Article I, § 2, of the United States Constitution, and that it constituted a political gerrymander, in violation of Article I and the Equal Protection Clause of the Fourteenth Amendment. With regard to the latter contention, the complaint alleged that the districts created by Act 1 were “meandering and irregular,” and “ignorfed] all traditional redistricting criteria, including the preservation of local government boundaries, solely for the sake of partisan advantage.” Juris. Statement 136a, ¶ 22, 135a, ¶ 20. A three-judge panel was convened pursuant to 28 U. S. C. §2284. The defendants moved to dismiss. The District Court granted the motion with respect to the political gerrymandering claim, and (on Eleventh Amendment grounds) all claims against the Commonwealth; but it declined to dismiss the apportionment claim as to other defendants. See Vieth v. Pennsylvania, 188 F. Supp. 2d 532 (MD Pa. 2002) (Vieth I). On trial of the apportionment claim, the District Court ruled in favor of plaintiffs. See Vieth v. Pennsylvania, 195 F. Supp. 2d 672 (MD Pa. 2002) (Vieth II). It retained jurisdiction over the case pending the court’s review and approval of a remedial redistricting plan. On April 18, 2002, Governor Schweiker signed into law Act. No. 2002-34, Pa. Stat. Ann., Tit. 25, § 3595.301 (Purdon Supp. 2003) (Act 34), a remedial plan that the Pennsylvania General Assembly had enacted to cure the apportionment problem of Act 1. Plaintiffs moved to impose remedial districts, arguing that the District Court should not consider Act 34 to be a proper remedial scheme, both because it was malapportioned, and because it constituted an unconstitutional political gerrymander like its predecessor. The District Court denied this motion, concluding that the new districts were not malappor-tioned, and rejecting the political gerrymandering claim for the reasons previously assigned in Vieth I. Vieth v. Pennsylvania, 241 F. Supp. 2d 478, 484-485 (MD Pa. 2003) (Vieth III). The plaintiffs appealed the dismissal of their Act 34 political gerrymandering claim. We noted probable jurisdiction. 539 U. S. 957 (2003). II Political gerrymanders are not new to the American scene. One scholar traces them back to the Colony, of Pennsylvania at the beginning of the 18th century, where several counties conspired to minimize the political power of the city of Philadelphia by refusing to allow it to merge or expand into surrounding jurisdictions, and denying it additional representatives. See E. Griffith, The Rise and Development of the Gerrymander 26-28 (1974) (hereinafter Griffith). In 1732, two members of His Majesty’s Council and the attorney general and deputy inspector and comptroller general of affairs of the Province of North Carolina reported that the Governor had proceeded to “divide old Precincts established by Law, & to enact new Ones in Places, whereby his Arts he has endeavoured to prepossess People in a future election according to his desire, his Designs herein being... either to endeavour by his means to get a Majority of his creatures in the Lower House” or to disrupt the assembly’s proceedings. 3 Colonial Records of North Carolina 380-381 (W. Saunders ed. 1886); see also Griffith 29. The political gerrymander remained alive and well (though not yet known by that name) at the time of the framing. There were allegations that Patrick Henry attempted (unsuccessfully) to gerrymander James Madison out of the First Congress. See 2 W. Rives, Life and Times of James Madison 655, n. 1 (reprint 1970); Letter from Thomas Jefferson to William Short, Feb. 9, 1789, reprinted in 5 Works of Thomas Jefferson 451 (P. Ford ed. 1904). And in 1812, of course, there occurred the notoriously outrageous political districting in Massachusetts that gave the gerrymander its name — an amalgam of the names of Massachusetts Governor Elbridge Gerry and the creature (“salamander”) which the outline of an election district he was credited with forming was thought to resemble. See Webster’s New International Dictionary 1052 (2d ed. 1945). “By 1840 the gerrymander was a recognized force in party politics and was generally attempted in all legislation enacted for the formation of election districts. It was generally conceded that each party would attempt to gain power which was not proportionate to its numerical strength.” Griffith 123. It is significant that the Framers provided a remedy for such practices in the Constitution. Article I, § 4, while leaving in state legislatures the initial power to draw districts for federal elections, permitted Congress to “make or alter” those districts if it wished. Many objected to the congressional oversight established by this provision. In the course of the debates in the Constitutional Convention, Charles Pinckney and John Rutledge moved to strike the relevant language. James Madison responded in defense of the provision that Congress must be given the power to check partisan manipulation of the election process by the States: “Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed. Besides, the inequality of the Representation in the Legislatures of particular States, would produce a like inequality in their representation in the Natl. Legislature, as it was presumable that the Counties having the power in the former case would secure it to themselves in the latter. What danger could there be in giving a controuling power to the Natl. Legislature?” 2 Records of the Federal Convention of 1787, pp. 240-241 (M. Farrand ed. 1911). Although the motion of Pinckney and Rutledge failed, opposition to the “make or alter” provision of Article I, §4 — and the defense that it was needed to prevent political gerrymandering — continued to be voiced in the state ratifying debates. A delegate to the Massachusetts convention warned that state legislatures “might make an unequal and partial division of the states into districts for the election of representatives, or they might even disqualify one third of the electors. Without these powers in Congress, the people can have no remedy; but the 4th section provides a remedy, a controlling power in a legislature, composed of senators and representatives of twelve states, without the influence of our commotions and factions, who will hear impartially, and preserve and restore to the people their equal and sacred rights of election.” 2 Debates on the Federal Constitution 27 (J. Elliot 2d ed. 1876). The power bestowed on Congress to regulate elections, and in particular to restrain the practice of political gerrymandering, has not lain dormant. In the Apportionment Act of 1842, 5 Stat. 491, Congress provided that Representatives must be elected from single-member districts “composed of contiguous territory.” See Griffith 12 (noting that the law was “an attempt to forbid the practice of the gerrymander”). Congress again imposed these requirements in the Apportionment Act of 1862, 12 Stat. 572, and in 1872 further required that districts “contain] as nearly as practicable an equal number of inhabitants,” 17 Stat. 28, § 2. In the Apportionment Act of 1901, Congress imposed a compactness requirement. 31 Stat. 733. The requirements of contiguity, compactness, and equality of population were repeated in the 1911 apportionment legislation, 37 Stat. 13, but were not thereafter continued. Today, only the single-member-district-requirement remains. See 2 U. S. C. § 2c. Recent history, however, attests to Congress’s awareness of the sort of districting practices appellants protest, and of its power under Article I, §4, to control them. Since 1980, no fewer than five bills have been introduced to regulate gerrymandering in congressional districting. See H. R. 5037, 101st Cong., 2d Sess. (1990); H. R. 1711,101st Cong., 1st Sess. (1989); H. R. 3468, 98th Cong., 1st Sess. (1983); H. R. 5529, 97th Cong., 2d Sess. (1982); H. R. 2349, 97th Cong., 1st Sess. (1981). Eighteen years ago, we held that the Equal Protection Clause grants judges the power — and duty — to control political gerrymandering, see Davis v. Bandemer, 478 U. S. 109 (1986). It is to consideration of this precedent that we now turn. Ill As Chief Justice Marshall proclaimed two centuries ago, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Sometimes, however, the law is that the judicial department has no business entertaining the claim of unlawfiilness — because the question is entrusted to one of the political branches or involves no judicially enforceable rights. See, e. g., Nixon v. United States, 506 U. S. 224 (1993) (challenge to procedures used in Senate impeachment proceedings); Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118 (1912) (claims arising under the Guaranty Clause of Article IV, §4). Such questions are said to be “nonjusticiable,” or “political questions.” In Baker v. Carr, 369 U. S. 186 (1962), we set forth six independent tests for the existence of a political question: “[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Id., at 217. These tests are probably listed in descending order of both importance and certainty. The second is at issue here, and there is no doubt of its validity. “The judicial Power” created by Article III, § 1, of the Constitution is not whatever judges choose to do, see Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 487 (1982); cf. Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 332-333 (1999), or even whatever Congress chooses to assign them, see Lujan v. Defenders of Wildlife, 504 U. S. 555, 576-577 (1992); Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 110-114 (1948). It is the power to act in the manner traditional for English and American courts. One of the most obvious limitations imposed by that requirement is that judicial action must be governed by standard, by rule. Laws promulgated by the Legislative Branch can be inconsistent, illogical, and ad hoc; law pronounced by the courts must be principled, rational, and based upon reasoned distinctions. Over the dissent of three Justices, the Court held in Davis v. Bandemer that, since it was “not persuaded that there are no judicially discernible and manageable standards by which political gerrymander cases are to be decided,” 478 U. S., at 123, such cases were justiciable. The clumsy shifting of the burden of proof for the premise (the Court was “not persuaded” that standards do not exist, rather than “persuaded” that they do) was necessitated by the uncomfortable fact that the six-Justice majority could not discern what the judicially discernable standards might be. There was no majority on that point. Four of the Justices finding justiciability believed that the standard was one thing, see id., at 127 (plurality opinion of White, J., joined by Brennan, Marshall, and Blackmun, JJ.); two believed it was something else, see id., at 161 (Powell, J., joined by Stevens, J., concurring in part and dissenting in part). The lower courts have lived with that assurance of a standard (or more precisely, lack of assurance that there is no standard), coupled with that inability to specify a standard, for the past 18 years. In that time, they have considered numerous political gerrymandering claims; this Court has never revisited the unanswered question of what standard governs. Nor can it be said that the lower courts have, over 18 years, succeeded in shaping the standard that this Court was initially unable to enunciate. They have simply applied the standard set forth in Bandemer’s four-justice plurality opinion. This might be thought to prove that the four-justice plurality standard has met the test of time — but for the fact that its application has almost invariably produced the same result (except for the incurring of attorney’s fees) as would have obtained if the question were nonjusticiable: Judicial intervention has been refused. As one commentary has put it, “[throughout its subsequent history, Bandemer has served almost exclusively as an invitation to litigation without much prospect of redress.” S. Issacharoff, P. Karlan, & R. Pildes, The Law of Democracy 886 (rev. 2d ed. 2002). The one case in which relief was provided (and merely preliminary relief, at that) did not involve the drawing of district lines; in all of the cases we are aware of involving that most common form of political gerrymandering, relief was denied. Moreover, although the case in which relief was provided seemingly involved the ne plus ultra of partisan manipulation, see n. 5, supra, we would be at a loss to explain why the Bandemer line should have been drawn just there, and should not have embraced several districting plans that were upheld despite allegations of extreme partisan discrimination, bizarrely shaped districts, and disproportionate results. See, e. g., Session v. Perry, 298 F. Supp. 2d 451 (ED Tex. 2004) (per curiam); O’Lear v. Miller, 222 F. Supp. 2d 850 (ED Mich.), summarily aff’d, 537 U. S. 997 (2002); Badham v. Eu, 694 F. Supp. 664, 670 (ND Cal. 1988), summarily aff’d, 488 U. S. 1024 (1989). To think that this lower court jurisprudence has brought forth “judicially discernible and manageable standards” would be fantasy. Eighteen years of judicial effort with virtually nothing to show for it justify us in revisiting the question whether the standard promised by Bandemer exists. As the following discussion reveals, no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are nonjusticiable and that Ban-demer was wrongly decided. A We begin our review of possible standards with that proposed by Justice White’s plurality opinion in Bandemer because, as the narrowest ground for our decision in that case, it has been the standard employed by the lower courts. The plurality concluded that a political gerrymandering claim could succeed only where plaintiffs showed “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” 478 U. S., at 127. As to the intent element, the plurality acknowledged that “[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.” Id., at 129. However, the effects prong was significantly harder to satisfy. Relief could not be based merely upon the fact that a group of persons banded together for political purposes had failed to achieve representation commensurate with its numbers, or that the apportionment scheme made its winning of elections more difficult. Id., at 132. Rather, it would have to be shown that, taking into account a variety of historic factors and projected election results, the group had been “denied its chance to effectively influence the political process” as a whole, which could be achieved even without electing a candidate. Id., at 132-133. It would not be enough to establish, for example, that Democrats had been “placed in a district with a supermajority of other Democratic voters” or that the district “departs from pre-existing political boundaries.” Id., at 140-141. Rather, in a challenge to an individual district the inquiry would focus “on the opportunity of members of the group to participate in party deliberations in the slating and nomination of candidates, their opportunity to register and vote, and hence their chance to directly influence the election returns and to secure the attention of the winning candidate.” Id., at 133. A statewide challenge, by contrast, would involve an analysis of “the voters’ direct or indirect influence on the elections of the state legislature as a whole.” Ibid, (emphasis added). With what has proved to be a gross understatement, the plurality acknowledged this was “of necessity a difficult inquiry.” Id., at 143. In her Bandemer concurrence, Justice O’Connor predicted that the plurality’s standard “will over time either prove unmanageable and arbitrary or else evolve towards some loose form of proportionality.” Id., at 155 (opinion concurring in judgment, joined by Burger, C. J., and Rehnquist, J.). A similar prediction of unmanageability was expressed in Justice Powell’s opinion, making it the prognostication of a majority of the Court. See id., at 171 (“The... most basic flaw in the plurality’s opinion is its failure to enunciate any standard that affords guidance to legislatures and courts”). That prognostication has been amply fulfilled. . In the lower courts, the legacy of the plurality’s test is one long record of puzzlement and consternation. See, e. g., Session, supra, at 474 (“Throughout this case we have borne witness to the powerful, conflicting forces nurtured by Ban-demer’s holding that the judiciary is to address ‘excessive’ partisan line-drawing, while leaving the issue virtually unenforceable”); Vieth I, 188 F. Supp. 2d, at 544 (noting that the “recondite standard enunciated in Bandemer offers little concrete guidance”); Martinez v. Bush, 234 F. Supp. 2d 1275, 1352 (SD Fla. 2002) (three-judge court) (Jordan, J., concurring) (the “lower courts continue to struggle in an attempt to interpret and apply the ‘discriminatory effect’ prong of the [Bandemer] standard”); O’Lear, supra, at 855 (describing Bandemer’s standard for assessing discriminatory effect as “somewhat murky”). The test has been criticized for its indeterminacy by a host of academic commentators. See, e. g., L. Tribe, American Constitutional Law § 13-9, p. 1083 (2d ed. 1988) (“Neither Justice White’s nor Justice Powell’s approach to the question of partisan apportionment gives any real guidance to lower courts forced to adjudicate this issue...”); Still, Hunting of the Gerrymander, 38 UCLA L. Rev. 1019, 1020 (1991) (noting that the plurality opinion has “confounded legislators, practitioners, and academics alike”); Schuck, The Thickest Thicket: Partisan Gerrymandering and Judicial Regulation of Politics, 87 Colum. L. Rev. 1325, 1365 (1987) (noting that the Bandemer plurality’s standard requires judgments that are “largely subjective and beg questions that lie at the heart of political competition in a democracy”); Issacharoff, Judging Politics: The Elusive Quest for Judicial Review of Political Fairness, 71 Texas L. Rev. 1643, 1671 (1993) (“Bandemer begot only confusion”); Grofman, An Expert Witness Perspective on Continuing and Emerging Voting Rights Controversies, 21 Stetson L. Rev. 783, 816 (1992) (“[A]s far as I am aware I am one of only two people who believe that Bandemer makes sense. Moreover, the other person, Daniel Lowenstein, has a diametrically opposed view as to what the plurality opinion means”). Because this standard was misguided when proposed, has not been improved in subsequent application, and is not even defended before us today by the appellants, we decline to affirm it as a constitutional requirement. B Appellants take a run at enunciating their own workable standard based on Article I, §2, and the Equal Protection Clause. We consider it at length not only because it reflects the litigant’s view as to the best that can be derived from 18 years of experience, but also because it shares many features with other proposed standards, so that what is said of it may be said of them as well. Appellants’ proposed standard retains the two-pronged framework of the Bandemer plurality — intent plus effect — but modifies the type of showing sufficient to satisfy each. To satisfy appellants’ intent standard, a plaintiff must “show that the mapmakers acted with a predominant intent to achieve partisan advantage,” which can be shown “by direct evidence or by circumstantial evidence that other neutral and legitimate redistricting criteria were subordinated to the goal of achieving partisan advantage.” Brief for Appellants 19 (emphasis added). As compared with the Bande-mer plurality’s test of mere intent to disadvantage the plaintiff’s group, this proposal seemingly makes the standard more difficult to meet — but only at the expense of making the standard more indeterminate. “Predominant intent” to disadvantage the plaintiff’s political group refers to the relative importance of that goal as compared with all the other goals that the map seeks to pursue — contiguity of districts, compactness of districts, observance of the lines of political subdivision, protection of incumbents of all parties, cohesion of natural racial and ethnic neighborhoods, compliance with requirements of the Voting Rights Act of 1965 regarding racial distribution, etc. Appellants contend that their intent test must be discernible and manageable because it has been borrowed from our racial gerrymandering cases. See Miller v. Johnson, 515 U. S. 900 (1995); Shaw v. Reno, 509 U. S. 630 (1993). To begin with, in a very important respect that is not so. In the racial gerrymandering context, the predominant intent test has been applied to the challenged district in which the plaintiffs voted. See Miller, supra; United States v. Hays, 515 U. S. 737 (1995). Here, however, appellants do not assert that an apportionment fails their intent test if any single district does so. Since “it would be quixotic to attempt to bar state legislatures from considering politics as they redraw district lines,” Brief for Appellants 3, appellants propose a test that is satisfied only when “partisan advantage was the predominant motivation behind the entire statewide plan,” id., at 32 (emphasis added). Vague as the “predominant motivation” test might be when used to evaluate single districts, it all but evaporates when applied statewide. Does it mean, for instance, that partisan intent must outweigh all other goals — contiguity, compactness, preservation of neighborhoods, etc. — statewide? And how is the statewide “outweighing” to be determined? If three-fifths of the map’s districts forgo the pursuit of partisan ends in favor of strictly observing political-subdivision lines, and only two-fifths ignore those lines to disadvantage the plaintiffs, is the observance of political subdivisions the “predominant” goal between those two? We are sure appellants do not think so. Even within the narrower compass of challenges to a single district, applying a “predominant intent” test to racial gerrymandering is easier and less disruptive. The Constitution clearly contemplates districting by political entities, see Article I, § 4, and unsurprisingly that turns out to be root- and-branch a matter of politics. See Miller, supra, at 914 (“[R]edistrieting in most cases will implicate a political calculus in which various interests compete for recognition...”); Shaw, supra, at 662 (White, J., dissenting) (“[Districting inevitably is the expression of interest group politics...”); Gaffney v. Cummings, 412 U. S. 735, 753 (1973) (“The reality is that districting inevitably has and is intended to have substantial political consequences”). By contrast, the purpose of segregating voters on the basis of race is not a lawful one, and is much more rarely encountered. Determining whether the shape of a particular district is so substantially affected by the presence of a rare and constitutionally suspect motive as to invalidate it is quite different from determining whether it is so substantially affected by the excess of an ordinary and lawful motive as to invalidate it. Moreover, the fact that partisan districting is a lawful and common practice means that there is almost always room for an election-impeding lawsuit contending that partisan advantage was the predominant motivation; not so for claims of racial gerrymandering. Finally, courts might be justified in accepting a modest degree of unmanageability to enforce a constitutional command which (like the Fourteenth Amendment obligation to refrain from racial discrimination) is clear; whereas they are not justified in inferring a judicially enforceable constitutional obligation (the obligation not to apply too much partisanship in districting) which is both dubious and severely unmanageable. For these reasons, to the extent that our racial gerrymandering cases represent a model of discernible and manageable standards, they provide no comfort here. The effects prong of appellants’ proposal replaces the Ban-demer plurality’s vague test of “denied its chance to effectively influence the political process,” 478 U. S., at 132-133, with criteria that are seemingly more specific. The. requisite effect is established when “(1) the plaintiffs show that the districts systematically ‘pack’ and ‘crack’ the rival party’s voters, and (2) the court’s examination of the ‘totality of circumstances’ confirms that the map can thwart the plaintiffs’ ability to translate a majority of votes into a majority of seats.” Brief for Appellants 20 (emphasis and footnote added). This test is loosely based on our cases applying § 2 of the Voting Rights Act of 1965, 42 U. S. C. § 1973, to discrimination by race, see, e. g., Johnson v. De Grandy, 512 U. S. 997 (1994). But a person’s politics is rarely as readily discernible — and never as permanently discernible — as a person’s race. Political affiliation is not an immutable characteristic, but may shift from one election to the next; and even within a given election, not all voters follow the party line. We dare say (and hope) that the political party which puts forward an utterly incompetent candidate will lose even in its registration stronghold. These facts make it impossible to assess the effects of partisan gerrymandering, to fashion a standard for evaluating a violation, and finally to craft a remedy. See Bandemer, supra, at 156 (O’Connor, J., concurring in judgment). Assuming, however, that the effects of partisan gerrymandering can be determined, appellants’ test would invalidate the districting only when it prevents a majority of the electorate from electing a majority of representatives. Before considering whether this particular standard is judicially manageable we question whether it is judicially discernible in the sense of being relevant to some constitutional violation. Deny it as appellants may (and do), this standard rests upon the principle that groups (or at least political-action groups) have a right to proportional representation. But the Constitution contains no such principle. It guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers. Even if the standard were relevant, however, it is not judicially manageable. To begin with, how is a party’s majority status to be established? Appellants propose using the results of statewide races as the benchmark of party support. But as their own complaint describes, in the 2000 Pennsylvania statewide elections some Republicans won and some Democrats won. See Juris. Statement 137a-138a (describing how Democratic candidates received more votes for President and auditor general, and Republicans received more votes for United States Senator, attorney general, and treasurer). Moreover, to think that majority status in statewide races establishes majority status for district contests, one would have to believe that the only factor determining voting behavior at all levels is political affiliation. That is assuredly not true. As one law review comment has put it: “There is no statewide vote in this country for the House of Representatives or the state legislature. Rather, there are separate elections between separate candidates in separate districts, and that is all there is. If the districts change, the candidates change, their strengths and weaknesses change, their campaigns change, their ability to raise money changes, the issues change — everything changes. Political parties do not compete for the highest statewide vote totals or the highest mean district vote percentages: They compete for specific seats.” Lowenstein & Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory, 33 UCLA L. Rev. 1, 59-60 (1985). See also Schuck, Partisan Gerrymandering: A Political Problem Without Judicial Solution, in Political Gerrymandering and the Courts 240, 241 (B. Grofman ed. 1990). But if we could identify a majority party, we would find it impossible to ensure that that party wins a majority of seats — -unless we radically revise the States’ traditional structure for elections. In any winner-take-all district system, there can be no guarantee, no matter how the district lines are drawn, that a majority of party votes statewide will produce a majority of seats for that party. The point is proved by the 2000 congressional elections in Pennsylvania, which, according to appellants’ own pleadings, were conducted under a judicially drawn district map “free from partisan gerrymandering.” Juris. Statement 137a. On this “neutral playing fiel[d],” the Democrats’ statewide majority of the major-party vote (50.6%) translated into a minority of seats (10, versus 11 for the Republicans). Id., at 133a, 137a. Whether by reason of partisan districting or not, party constituents may always wind up “packed” in some districts and “cracked” throughout others. See R. Dixon, Democratic Representation 462 (1968) (“All Districting Is ‘Gerrymandering’”); Schuck, 87 Colum. L. Rev., at 1359. Consider, for example, a legislature that draws district lines with no objectives in mind except compactness and respect for the lines of political subdivisions. Under that system, political groups that tend to cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a “natural” packing effect. See Bandemer, 478 U. S., at 159 (O’Connor, J., concurring in judgment). Our one-person, one-vote cases, see Reynolds v. Sims, 377 U. S. 533 (1964); Wesberry v. Sanders, 376 U. S. 1 (1964), have no bearing upon this question, neither in principle nor in practicality. Not in principle, because to say that each individual must have an equal say in the selection of representatives, and hence that a majority of individuals must have a majority say, is not at all to say that each discernible group, whether farmers or urban dwellers or political parties, must have representation equivalent to its numbers. And not in practicality, because the easily administrable standard of population equality adopted by Wesberry and Reynolds enables judges to decide whether a violation has occurred (and to remedy it) essentially on the basis of three readily determined factors — where the plaintiff lives, how many voters are in his district, and how many voters are in other districts; whereas requiring judges to decide whether a district-ing system will produce a statewide majority for a majority party casts them forth upon a sea of imponderables, and asks them to make determinations that not even election experts can agree upon. For these reasons, we find appellants’ proposed standards neither discernible nor manageable. C For many of the same reasons, we also reject the standard suggested Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Blackmun delivered the opinion of the Court. The city of Los Angeles, Cal., refused to renew Golden State Transit Corporation’s taxicab franchise after the company’s drivers went on strike. We are asked to decide whether, under Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132 (1976), the city’s action is preempted by the National Labor Relations Act (NLRA), 29 U. S. C. § 151 et seq. I In 1980, Golden State, which operated taxicabs under the Yellow Cab name, applied to the city for a renewal of its operating franchise eventually scheduled to lapse on March 31, 1981. That franchise had first been acquired in 1977. On September 4, 1980, the city’s Board of Transportation Commissioners recommended the renewal of Golden State’s franchise — the largest, with approximately 400 cabs, of companies operating in Los Angeles — along with the franchises of 12 other taxi companies. In October, while the franchise renewal application was pending, Golden State’s labor contract with its drivers expired. The company and the drivers, represented by Local 572 of the International Brotherhood of Teamsters, signed a short-term contract in order that operations would continue while negotiation and mediation proceeded. This interim contract was to expire at midnight February 10, 1981, the day before the City Council was scheduled to consider action on the franchise renewals. On February 2, the Council’s Transportation and Traffic Committee endorsed franchise renewals recommended by the Board of Transportation Commissioners. The Committee’s report stated that Golden State and other companies were “in compliance with all terms and conditions of their franchise[s].” App. 39. On February 11, the drivers struck Golden State, halting its operations. At the Council meeting that day, Teamster representatives argued against renewal of Golden State’s franchise because of the pendency of the labor dispute. The Council postponed decision on Golden State’s application until February 17, but, with possibly one exception, approved all other franchise renewal applications. At the February 17 meeting, when the union again opposed the renewal, the Council voted to extend Golden State’s franchise from March 31 to April 30, but only if the Council expressly found, on or before March 27, that the extension was in the best interests of the city. At its March 23 meeting, the Council held a short public hearing on whether it should grant the limited extension. By this time, the labor dispute and the franchise renewal issue had become clearly intertwined. The Teamsters opposed any extension of the Yellow Cab franchise, stating that such action would simply lengthen the strike and keep the drivers out of work. It preferred to see the franchise terminated, and to have the drivers seek jobs from Golden State’s successor or from other franchise holders. As others spoke, the discussion turned to whether there was even a need for Yellow Cab, in light of the services performed by the other 12 franchised taxi companies. There were comments regarding an excess of cabs; the city’s policy at the time, however, was not to limit the number of taxi companies or the number of taxis in each fleet. Id., at 81-82. The strike was central to the discussion. One Council member charged Golden State with negotiating unreasonably, id., at 71, while another accused the company of trying to “brea[k] the back of the union.” Id., at 66. The sympathies of the Council members who spoke lay with the union. But rather than defeat the renewal outright, the council reached a consensus for rejection of the extension with a possibility for reopening the issue if the parties settled their labor dispute before the franchise expired the following week. Four Council members endorsed this approach, and the Assistant City Attorney said that he clearly had informed the parties that this was the city’s position. Id., at 68. The Council President said: “I find that it will be very difficult to get this ordinance past (sic) to extend this franchise if the labor dispute is not settled by the end of this week. ” Id., at 75. He added: “I just think that this kind of information should be put out in the open, so everybody understands it.” Ibid. The Council, by a vote of 11 to 1, defeated the motion to extend the franchise and it expired by its terms on March 31. II Golden State filed this action in the United States District Court for the Central District of California, alleging that the city’s action was pre-empted by the NLRA and violated the company’s rights to due process and equal protection. It sought declaratory and injunctive relief and damages. The District Court found that it was “undisputed that the sole basis for refusing to extend [Golden State’s] franchise was its labor dispute with its Teamster drivers,” 520 F. Supp. 191, 193 (1981); that the Council had “threaten[ed] to allow Yellow Cab’s franchise to terminate unless it entered into a collective bargaining agreement with the Teamsters,” id., at 194; and that the Council had denied the company an essential weapon of economic strength — the ability to wait out a strike. On the basis of the pre-emption claim, the District Court granted Golden State’s motion for a preliminary injunction to preserve the franchise. Ibid. The Court of Appeals for the Ninth Circuit found “ample evidence” in the record to support the District Court’s finding, but nevertheless vacated the injunction. 686 F. 2d 758, 759, 762 (1982). The court reasoned that Golden State had little chance of prevailing on its pre-emption claim or on the other grounds it asserted. This Court denied Golden State’s petition for certiorari. 459 U. S. 1105 (1983). Following litigation on unrelated issues, and with the company having abandoned its equal protection claim, the District Court granted summary judgment for the city. App. to Pet. for Cert. 11a. Golden State had not moved for summary judgment in its favor. The Court of Appeals affirmed, holding that the city’s action was not pre-empted. 754 F. 2d 830 (1985). The court felt that, when the activity regulated is only a peripheral or incidental concern of labor policy, traditional municipal regulation is not pre-empted. The court found nothing in the record to suggest that the city’s nonrenewal decision “was not concerned with transportation.” Id., at 833. Moreover, to avoid undue restriction of local regulation, “only actions seeking to directly alter the substantive outcome of a labor dispute should be preempted.” Here, the city had not attempted to dictate the terms of the agreement, but had “merely insisted upon resolution of the dispute as a condition to franchise renewal.” Ibid. The Court of Appeals also rejected Golden State’s due process claim. Id., at 833-834. Because of our concern about the propriety of the grant of summary judgment for the city in this factual and labor context, we granted cer-tiorari. 472 U. S. 1016 (1985). hH hH 1 — i A Last Term, in Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985), we again noted: “The Court has articulated two distinct NLRA pre-emption principles.” Id., at 748. See also Belknap, Inc. v. Hale, 463 U. S. 491, 498-499 (1983). The first, the so-called Garmon preemption, see San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), prohibits States from regulating “activity that the NLRA protects, prohibits, or arguably protects or prohibits.” Wisconsin Dept. of Industry v. Gould Inc., ante, at 286. The Garmon rule is intended to preclude state interference with the National Labor Relations Board’s interpretation and active enforcement of the “integrated scheme of regulation” established by the NLRA. Ante, at 289. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S., at 748, and n. 26. This case, however, concerns the second pre-emption principle, the so-called Machinists pre-emption. See Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132 (1976). This precludes state and municipal regulation “concerning conduct that Congress intended to be unregulated.” Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S., at 749. Although the labor-management relationship is structured by the NLRA, certain areas intentionally have been left “ ‘to be controlled by the free play of economic forces.’” Machinists, 427 U. S., at 140, quoting NLRB v. Nash-Finch Co., 404 U. S. 138, 144 (1971). The Court recognized in Machinists that “‘Congress has been rather specific when it has come to outlaw particular economic weapons,’” 427 U. S., at 143, quoting NLRB v. Insurance Agents, 361 U. S. 477, 498 (1960), and that Congress’ decision to prohibit certain forms of economic pressure while leaving others unregulated represents an intentional balance “ ‘between the uncontrolled power of management and labor to further their respective interests.’” Machinists, 427 U. S., at 146, quoting Teamsters v. Morton, 377 U. S. 252, 258-259 (1964). States are therefore prohibited from imposing additional restrictions on economic weapons of self-help, such as strikes or lockouts, see 427 U. S., at 147, unless such restrictions presumably were contemplated by Congress. “Whether self-help economic activities are employed by employer or union, the crucial inquiry regarding pre-emption is the same: whether ‘the exercise of plenary state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the Act’s processes.’” Id., at 147-148, quoting Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369, 380 (1969). B There is no question that the Teamsters and Golden State employed permissible economic tactics. The drivers were entitled to strike — and to time the strike to coincide with the Council’s decision — in an attempt to apply pressure on Golden State. See NLRB v. Insurance Agents, 361 U. S., at 491, 496. And Golden State was entirely justified in using its economic power to withstand the strike in an attempt to obtain bargaining concessions from the union. See Belknap, Inc. v. Hale, 463 U. S., at 493, 500 (employer has power to hire replacements during an economic strike); American Ship Building Co. v. NLRB, 380 U. S. 300, 318 (1965) (at bargaining impasse employer may use lockout solely to bring economic pressure on union). The parties’ resort to economic pressure was a legitimate part of their collective-bargaining process. Machinists, 427 U. S., at 144. But the bargaining process was thwarted when the city in effect imposed a positive durational limit on the exercise of economic self-help. The District Court found that the Council had conditioned the franchise on a settlement of the labor dispute by March 31. We agree with the Court of Appeals that this finding is amply supported by the record. The city’s insistence on a settlement is pre-empted if the city “‘[entered] into the substantive aspects of the bargaining process to an extent Congress has not countenanced.’” Machinists, 427 U. S., at 149, quoting NLRB v. Insurance Agents, 361 U. S., at 498. That such a condition — by a city or the National Labor Relations Board — contravenes congressional intent is demonstrated by the language of the NLRA and its legislative history. The NLRA requires an employer and a union to bargain in good faith, but it does not require them to reach agreement. § 8(d), as amended, 29 U. S. C. § 158(d) (duty to bargain in good faith “does not compel either party to agree to a proposal or require the making of a.concession”); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 45 (1937) (“The theory of the Act is that free opportunity for negotiation . . . may bring about the adjustments and agreements which the Act in itself does not attempt to compel”). The Act leaves the bargaining process largely to the parties. See H. K. Porter Co. v. NLRB, 397 U. S. 99, 103 (1970). It does not purport to set any time limits on negotiations or economic struggle. Instead, the Act provides a framework for the negotiations; it “is concerned primarily with establishing an equitable process for determining terms and conditions of employment.” Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S., at 753. See also § 1, as amended, of the NLRA, 29 U. S. C. § 151 (Act achieves national policy “by encouraging the practice and procedure of collective bargaining”). The legislative history, too, makes clear that the Act and the National Labor Relations Board were intended to facilitate bargaining between the parties. The Senate Report states: “Disputes about wages, hours of work, and other working conditions should continue to be resolved by the play of competitive forces .... This bill in no respect regulates or even provides for supervision of wages or hours, nor does it establish any form of compulsory arbitration.” S. Rep. No. 573, 74th Cong., 1st Sess., 2 (1935). Senator Wagner, sponsor of the NLRA, said that the Board would not usurp the role of free collective action. See 79 Cong. Rec. 6184 (1935). See also id., at 7574 (Sen. Wagner affirming that the Act encourages “voluntary settlement of industrial disputes”). Protecting the free use of economic weapons during the course of negotiations was the rationale for this Court’s findings of pre-emption in Machinists and in its predecessor, Teamsters v. Morton, 377 U. S. 252 (1964). In some areas of labor relations that the NLRA left unregulated, we have concluded that Congress contemplated state regulation. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S., at 754-758; New York Tel. Co. v. New York Labor Dept., 440 U. S. 519, 540-544 (1979) (plurality opinion); id., at 547 and 549 (opinions concurring in result and concurring in judgment). Los Angeles, however, has pointed to no evidence of such congressional intent with respect to the conduct at issue in this case. Instead, the city argues that it is somehow immune from labor pre-emption solely because of the nature of its conduct. The city contends it was not regulating labor, but simply exercising a traditional municipal function in issuing taxicab franchises. We recently rejected a similar argument to the effect that a State’s spending decisions are not subject to pre-emption. See Wisconsin Dept. of Industry v. Gould Inc., ante, at 287-288. Cf. Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S., at 754-758. Similarly, in the transportation area, a State may not ensure uninterrupted service to the public by prohibiting a strike by the unionized employees of a privately owned local transit company. See Bus Employees v. Missouri, 374 U. S. 74 (1963); cf. Bus Employees v. Wisconsin Employment Relations Board, 340 U. S. 383, 391-392 (1951). Nor in this case may a city restrict a transportation employer’s ability to resist a strike. Although in each Bus Employees case the employees’ right to strike was protected by § 7, as amended, of the NLRA, 29 U. S. C. § 157, “ ‘[r]esort to economic weapons should more peaceful measures not avail’ is the right of the employer as well as the employee,” and “the State may not prohibit the use of such weapons . . . any more than in the case of employees.” Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S., at 147, quoting American Ship Building Co. v. NLRB, 380 U. S., at 317. “[Fjederal law intended to leave the employer and the union free to use their economic weapons against one another.” Belknap, Inc. v. Hale, 463 U. S., at 500. We hold, therefore, that the city was preempted from conditioning Golden State’s franchise renewal on the settlement of the labor dispute. The city, however, contends that it was in a no-win situation: having not renewed the franchise and thus permitting it to lapse, it stands accused of favoring the union; had it granted the renewal, it would have been accused of favoring the employer. But the question is not whether the city’s action favors one side or the other. Our holding does not require a city to renew or to refuse to renew any particular franchise. We hold only that a city cannot condition a franchise renewal in a way that intrudes into the collective-bargaining process. C “Free collective bargaining is the cornerstone of the structure of labor-management relations carefully designed by Congress when it enacted the NLRA.” New York Tel. Co. v. New York Labor Dept., 440 U. S., at 551 (Powell, J., dissenting). Even though agreement is sometimes impossible, government may not step in and become a party to the negotiations. See H. K. Porter Co. v. NLRB, 397 U. S., at 103-104. A local government, as well as the National Labor Relations Board, lacks the authority to “‘introduce some standard of properly “balanced” bargaining power’... or to define ‘what economic sanctions might be permitted negotiating parties in an “ideal” or “balanced” state of collective bargaining.’” Machinists v. Wisconsin Employment Relations Comm'n, 427 U. S., at 149-150, quoting NLRB v. Insurance Agents, 361 U. S. 477, 497-500 (1960). The settlement condition imposed by the Los Angeles City Council, as we read the summary-judgment record before us, destroyed the balance of power designed by Congress, and frustrated Congress’ decision to leave open the use of economic weapons. In this case, the District Court and the Court of Appeals found that the city had conditioned the renewal of Golden State’s franchise on the company’s reaching a labor agreement with the Teamsters, but held that the city’s action was not pre-empted by Machinists. This was error as a matter of law. Whether summary judgment should have been entered for Golden State is a matter we do not decide, for petitioner made no motion for summary judgment on the issue of pre-emption. The Court of Appeals’ judgment affirming the summary judgment entered for the city is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Antitrust claims were asserted in a second amended complaint filed by Golden State. The District Court granted the city partial summary judgment as to these claims, 563 F. Supp. 169 (CD Cal. 1983), and the Court of Appeals affirmed. 726 F. 2d 1430 (CA9 1984). We again denied certiorari. 471 U. S. 1003 (1985). One judge concurred in the majority’s due process analysis but otherwise concurred only in the judgment. As to pre-emption, he would have granted summary judgment for the city on the ground that Golden State had failed to provide evidence of the city’s motive or of the economic impact on Golden State. 754 F. 2d, at 834. The city contends that the case is moot because the franchise, if renewed, would have expired on March 31, 1985. But if petitioner’s franchise renewal had been granted in 1981, petitioner would have faced a renewal procedure in 1985 rather than the more onerous task of obtaining a franchise through competitive bidding. See Tr. of Oral Arg. 25-26. But for the nonrenewal in 1981, Golden State would be more likely to have an operating franchise now. At oral argument, counsel for Golden State said the company was ready to resume operations, even though it was in Chapter 11 bankruptcy. Id., at 5. It therefore cannot be said that “[ijnterven-ing events have . . . ‘irrevocably eradicated the effects of the alleged violation.’” Los Angeles v. Lyons, 461 U. S. 95, 101 (1983), quoting County of Los Angeles v. Davis, 440 U. S. 625, 631 (1979). We conclude, therefore, that the case is not moot. We do not reach the question whether the city’s action in this ease is pre-empted under Gannon, because Golden State and its supporting amici, including the NLRB, rely exclusively on the Machinists doctrine, and we find their argument persuasive. Our pre-emption analysis is not affected by the fact that we are reviewing a city’s actions rather than those of a State. See Fisher v. Berkeley, ante, at 265. And the fact that the city acted through franchise procedures rather than a court order or a general law also is irrelevant to our analysis. “[J]udicial concern has necessarily focused on the nature of the activities which the States have sought to regulate, rather than on the method of regulation adopted.” San Diego Building Trades Council v. Garmon, 359 U. S. 236, 243 (1959). See Wisconsin Dept. of Industry v. Gould Inc., ante, p. 282. The District Court’s finding is supported by objective factors such as what the city — through the Council and the Assistant City Attorney-told the parties, and its schedule of Council meetings. At the meeting of March 23,1981, four Council members without contradiction pointedly conveyed the settlement condition to the parties as the Council’s “bottom line” on the issue. The condition also was announced to the parties by the Council’s agent, the Assistant City Attorney, revealing that the condition was city policy. Moreover, the condition was evident from the schedule on which the Council considered the question. Golden State’s franchise issue was deferred from February 11 to the 17th, from February 17 to March 23, and from March 23 to the 31st. Only Golden State, among the franchise applicants, was subjected to a conditional 1-month extension of its franchise. The only plausible reason for these repeated short extensions is that the city was giving the franchise holder additional time to comply with a particular requirement. Yet Golden State was in compliance with all the terms of the franchise except the Council’s desire for a settlement. There is no issue here that, rather than regulating the relationship between the employer and the union, the city’s action protected innocent third parties from the employer. See Belknap, Inc. v. Hale, 463 U. S. 491, 600 (1983) (third parties hired as strike replacements based on misrepresentations by the employer had state-law causes of action). The Court of Appeals, in holding that the city’s action was not preempted, reasoned that what the city did involved merely a peripheral concern of federal labor law. The idea that state action may be upheld under such circumstances is part of the Garmon analysis. See Belknap, Inc. v. Hale, 463 U. S., at 498-499. Because we hold that the city directly interfered with the bargaining process — a central concern of the NLRA — we need not reach the question whether this exception applies to a Machinists ease. But see Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 754-758 (1985). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

J

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Clark delivered the opinion of the Court. Petitioner, an interstate motor carrier certificated by the Interstate Commerce Commission, but without a permit from Virginia allowing intrastate operations, was fined $5,000 by the State Corporation Commission for carrying 10 shipments of freight alleged to have been of an intrastate character and, therefore, in violation of Chapter 12, Title 56, of the Code of Virginia. The shipments in question originated at Virginia points and were destined to Virginia points but were routed through Bluefield, West Virginia, where petitioner maintains its main, terminal. They were transported in a vehicle with freight destined to points outside of Virginia. Upon arrival at Bluefield the freight destined to Virginia was removed and consolidated with freight coming to the terminal from non-Virginia origins. It then moved back into Virginia to its destinations. • The Corporation Commission found that the routes thus employed through Bluefield were a subterfuge to evade state law. The Virginia Court of Appeals agreed but directed that the fine be reduced to $3,500 because of . a failure of the Commonwealth’s case on three of the shipments. 199 Va. 797, 102 S. E. 2d 339. Petitioner pleads that Virginia’s interpretation of its operations conflicts with its interstate certificate as well as an interpretation thereof by the Interstate Commerce Commission. It claims that respondent was without power thus to impose criminal sanctions on its certificated interstate operations. We granted certiorari, 358 U. S. 810, to.test out the conflicting contentions. We agree with the petitioner that under the facts here the interpretation of petitioner’s interstate commerce certificate should first be litigated before the Interstate Commerce Commission under the provision of § 204 (c) of the Interstate Commerce Act, 49 U. S. C. §'304 (c). Petitioner operates its truck lines in parts of Virginia and West Virginia. Its activity is carried on under a certificate of convenience and necessity issued by the Interstate Commerce Commission. The petitioner’s present I. C. C. certificate is a combination of its original 1941 certificate and a second certificate issued in 1943 upon its purchase of the operating . rights of another carrier. Neither it nor its predecessor held a certificate from the State Corporation Commission authorizing any intrastate carriage. It is authorized under the relevant parts of its interstate certificate to transport general commodities as a motor common carrier in interstate commerce: “Between Bluefield, Va., Bluefield, W. Va., and points and places within five miles of Bluefield, W. Va. “Between Bluefield, Va., and points and places within five miles of Bluefield, Va., and those within five miles of Bluefield, W. Va., respectively, on the one hand, and, on the other, points and places in that-part of Virginia and West Virginia within 75 miles of that territory. Between Bluefield, W. Va., on the one hand, and, on the other, points and places in West Virginia, that part of Virginia west of U. S. Highway 29 and south of U.-S. Highway 60 including points and places on the indicated portions of the highways specified, and that part of Virginia north of U. S. Highway 60 which is within 80 miles of Bluefield, W. Va.” Petitioner’s method of operation is uncontradicted, in the record. It maintains its headquarters in Bluefield, West Virginia, and terminal points in Virginia at Bristol and Roanoke. Its main activity is the movement of freight of less-than-truckload shipments. In order to gather the shipments and, by combining them, make up a full truck load it operates “peddler runs” from its Virginia terminals which serve as pick ups for freight in the vicinity. All of the traffic is directed through the Bluefield, West Virginia, terminal. About three percent of the traffic consists of shipments destined from one Virginia point to another while the remainder is -directed from points within to those outside that State. The freight gathered by the “peddler runs” is combined at a terminal and placed in an “over the road” tractor trailer unit and carried to Bluefield, West Virginia. There it is broken down and combined with other shipments received from all of the other runs of petitioner. That part destined to points in and around Bluefield is delivered locally through “peddler runs” operated from that terminal. The remainder is sorted out for forwarding to the terminal nearest its destination and is “filed out” by “over the road” operation: Upon arrival at the. latter terminal it is delivered by “peddler runs” to its local destination. ■ The Commonwealth’s criminal case is bottomed on shipments the origin and final destination of which are in Virginia. While it stipulated that all of these shipments were routed through Bluefield, West Virginia, and were, therefore, on their face interstate shipments, Virginia takes the position that they were clearly intrastate in character because had they been moved over direct routes none would ever have left the Commonwealth. It contends that petitioner’s circuitous and unnecessarily long routes were a mere subterfuge to escape intrastate regulation and evade its jurisdiction. Aside from the testimony of highway officers as to the actual shipments, none of which is disputed, the Commonwealth’s evidence consisted solely of maps substantiating its position that petitioner’s routes were circuitous and often long, sometimes exceeding twice the shortest possible route. However, it offered no direct evidence of bad faith on the part of petitioner in moving its traffic through Bluefield, West Virginia. On the other hand, petitioner offered .the testimony of its manager and others as to the bona fides of . its operation. It proved that it and its predecessor-operator had been carrying on its business in Virginia in a similar manner for many years and that it enjoyed certificates from the Interstate Commerce Commission authorizing its operations. Petitioner admits that some of its routes are circuitous but claims this is because of its method of gathering less-than-truckload shipments regardless of final destination and routing them through its “gateway” terminal at Bluefield where they are assorted according to final destination. It stands uncontradicted that , its operation is not only practical, efficient and profitable, but also that the creation of this “flow of traffic” is a time-saver to the shipper since there is less time lost waiting for the making up of a full truck load. It also claims a unique service for less-than-truckload shipments of central Virginians who ship commodities to southwest Virginia and Kentucky and who otherwise would suffer long delays on deliveries or would be obliged to ship by special truck at higher rates. While these considerations are. not controlling, they throw light on petitioner’s claim of bona fides. In Castle v. Hayes Freight Lines, 348 U. S. 61, 63-64 (1954), we observed that “Congress in the Motor Carrier Act adopted „a comprehensive plan for regulating the carriage of goods by motor truck in interstate commerce.” We pointed out that 49 U. S. C. § 312 provides “that all certificates, permits or licenses issued by the Commission ‘shall remain in effect until suspended of terminated as herein provided’.... Under these circumstances, it would be odd if a state-could take action amounting to a suspension or revocation of an interstate carrier’s commission-granted right to operate.” To uphold' the criminal fines here assessed would be tantamount to a partial suspension of petitioner’s federally granted certificate. .Even though the questioned operations constitute only a minor, i. e., three percent, portion of the petitioner’s business, that portion is nevertheless entitled to the same protection as are the other operations which are conducted under the certificate. In fact, the method of handling is identical and the freight is often transported in the same vehicle. The certificate on its face covers the whole operation. In -fact, in 1953, in approving the acquisition of petitioner by another carrier, the I. C. C. expressly approved the very type of operation now being carried on. In its unpublished report, the Commission noted: “Under its existing authority, Service Storage may lawfully perform a cross-haul service under a combination of its radial rights by operating, for example, between points in West Virginia within 75 miles of the base area, on the one hand, and, on the other, points in Virginia on and west of U. S. Highway 29 and on the south of U. S. Highway 60, and points in the three Kentucky counties provided such operations under a combination of the various rights are routed through Bluefield as a. gateway.” MC-F-5361, Smith’s Transfer Corporation of Staunton, Va. — Control— Service ■ Storage and Transfer Company, Inc., 59 M. C. C. 803 (report not published.) It appears clear that interpretations of federal certificates of this character should be made in the first instance by the authority issuing the certificate and upon whom the Congress has placed the responsibility of action.. The Commission has long taken this position. Compare Atlantic Freight Lines, Inc., v. Pennsylvania Public Utility Comm’n, 163 Pa. Super. 215, 60 A. 2d 589, with Atlantic Freight Lines, Inc. — Petition for Declaratory Order, 51 M. C. C. 175. The wisdom of such a practice is highlighted by the facts of this case. Between the close of the hearing, and the announcement of, the Virginia Commission’s decision, Service petitioned the I. C. C. for a declaratory order interpreting its certificate. The Commonwealth, although it had notice of the I. C. C. proceeding, elected not to participate. After the Virginia Commission had found petitioner to be operating in intrastate commerce and fined it for such operation, the I. C. C. issued an opinion, 71 M. C. C. 304, in which it construed petitioner’s certificate as authorizing Virginia-to-Virginia traffic routed through Bluefield, West Virginia. This was but a reaffirmation of its prior interpretation of the certificate. 59 M. C. C. 803, supra. Such conflicts can best be avoided if the interpretation of I. C. C. certificates is left to the Interstate Commerce Commission. Nor is Eichholz v. Public Service Comm’n, 306 U. S. 268 (1939) to the contrary. There Missouri revoked a carrier’s interstate permit because it-crossed state lines into Kansas City, Kansas, for the sole purpose of creating an interstate operation. Eichholz, however, had no certificate from the Interstate Commerce Commission, and this Court’s opinion was premised on this fact rather than that the interstate operations were merely a subterfuge and hence not bona fide. The words of Chief Justice Hughes there clearly distinguish that case from the present: “When the [Missouri] Commission revoked the permit, the Interstate Commerce Commission had not acted upon appellant’s application under the Federal Motor Carrier Act and meanwhile the authority of the state body to take appropriate action under the state law to enforce reasonable regulations of traffic upon the state highways had not been superseded.” 306 U. S., at 273. Eichholz followed naturally from the holding of the Court in Welch Co. v. New Hampshire, 306 U. S. 79 (1939), that the enactment of the Motor Carrier Act did not, without more, supersede all reasonable state regulation, the latter continuing in effect until the Interstate Commerce Commission acted on the same subject matter. That, it has admittedly done here. Finally, the Commonwealth is not helpless to act. If it believes that petitioner’s operation is not bona fide interstate but is merely a subterfuge to escape its jurisdiction, it can avail itself of the remedy Congress has provided in the Act. Section 204 (c), supra, note 2, authorizes the filing of a “complaint in writing to the Commission by any . . . State board . . . [that] any . . . carrier . . .” has abused its certificate. See also Castle v. Hayes Freight Lines, supra. Thus the possibility of a multitude of interpretations of the same federal certificate by several States will be avoided and a uniform administration of the Act achieved. The judgment is Reversed. ya. Code, 1950, § 56-278, provides: “No common carrier by motor vehicle or restricted common carrier by motor vehicle not herein exempted shall engage in intrastate operation on any highway within the State without first having obtained from the Commission a certificate of public' convenience and necessity authorizing such operation, and a statement of the State Highway Commission that the law applicable to the proposed route or routes has been complied with as to size, weight, and type of vehicles to be used, and a like statement as to any increase in size, weight, and type of vehicles proposed to be operated by the applicant after such application is granted.” That section provides: (c) “Upon complaint in writing to the Commission by any person, State board, organization, or body politic, or upon its own initiative without complaint, the Commission may investigate whether any motor carrier or broker has failed to comply with any provision of this chapter, or .with any requirement established pursuant thereto. If the Commission, after notice and hearing, finds upon any such investigation that the motor carrier or broker has failed to comply with any such provision or requirement, the Commission shall issue an appropriate order to compel the carrier or broker to comply therewith. Whenever the Commission is of opinion that any complaint does not state reasonable grounds for investigation and action on its part, it may dismiss such complaint.” 49 U. S. C. § 304 (c). 49 U. S..C. §303 (10) defines “interstate commerce” as including “commerce . . . between places in the same State through another State, 49 Stat. 544. In its declaratory opinion the Commission noted: “In the absence of any showing that petitioner’s use of its authorized route is a subterfuge to avoid State regulation, or other than a logical and normal, operation through the carrier’s headquarters, we are of the opinion that petitioner’s operations, in the manner described, constitute bona fide transportation in interstáte commerce. “We find that the operations described between points in Virginia through Bluefield, W. Va., are bona fide operations in interstate .commerce within the authority granted to petitioner in certificate No.' MC — 30471.” Service Storage & Transfer Co., Inc. — Petition for Declaratory Order, 71 M. C. C. 304, 306. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Rehnquist delivered the opinion for the Court. In March 1975, the Chicago, Rock Island and Pacific Railroad Co. (Rock Island) petitioned the United States District Court for the Northern District of Illinois for reorganization under §77 of the Bankruptcy Act of 1898, as added, 47 Stat. 1474, and amended, 11 U. S. C. §205. Under the protection of §77, the Rock Island continued to operate for approximately four and one-half years until it ceased all operations in September 1979 as a result of a labor strike that had depleted its cash reserves. Pursuant to 49 U. S. C. § 11125 (1976 ed., Supp. IV), the Interstate Commerce Commission (ICC) directed the Kansas City Terminal Railway Co. to provide rail service over the Rock Island lines. On January 25, 1980, the reorganization court concluded that reorganization was not possible. It then directed the Trustee of the Rock Island estate to prepare a plan for liquidation, and to continue planning for the cessation of rail operations upon the March 1980 expiration of the ICC’s directed service order. App. 239a-240a. Since the entry of the January 25, 1980, order, the Trustee has been liquidating the assets of the Rock Island estate. On March 4,1980, various railroads and labor organizations representing Rock Island employees reached an agreement as to Rock Island employees hired by carriers acquiring the Rock Island’s trackage. The agreement covered such matters as hiring preferences, monetary protection, and seniority, but it did not cover those Rock Island employees who are not employed by acquiring carriers. On April 14, 1980, the Rock Island Trustee petitioned the reorganization court to confirm the Rock Island’s abandonment of all rail lines and operations. The reorganization court referred the petition to the ICC for its recommendation. On May 23, the ICC concluded that the Rock Island’s abandonment and dissolution as an operating railroad was necessary. On June 2, the reorganization court ordered the total abandonment of the Rock Island system and the discontinuance of its service. The court found that to order the Rock Island to continue its operations indefinitely at a loss for the public’s benefit would violate the “Fifth Amendment rights of those who have a security interest in the enterprise. Brooks-Scanlon Co. v. Railroad Commission, 251 U. S. 396 (1920).” Id., at 270a. The reorganization court also concluded that “no claim or arrangement of any kind or nature for employee labor protection payable out of the assets of the Debtor’s estate is allowed or required by this Court” pursuant to § 17(a) of the Milwaukee Railroad Restructuring Act (MRRA), Pub. L. 96-101, 93 Stat. 744, 45 U. S. C. §915(a) (1976 ed., Supp. IV). App. 271a. The court reasoned that § 17(a) of the MRRA does not apply to a total, systemwide abandonment of a railroad. App. 263a-264a. Congress responded to the crisis resulting from this demise of the Rock Island by enacting the Rock Island Railroad Transition and Employee Assistance Act (RITA), Pub. L. 96-254, 94 Stat. 399, 45 U. S. C. §1001 et seq. (1976 ed., Supp. IV). The President signed the Act into law on May 30, 1980, three days before the reorganization court’s abandonment order. At issue in these cases are RITA’s employee protections provisions. Sections 106 and 110 require the Rock Island Trustee to provide economic benefits of up to $75 million to those Rock Island employees who are not hired by other carriers. 45 U. S. C. §§ 1005, 1008 (1976 ed., Supp. IV). Benefits must be paid from the estate’s assets. The employee benefit obligations must be considered administrative expenses of the Rock Island estate for purposes of determining the priority of the employees’ claims to the assets of the estate upon liquidation. On June 5, 1980, appellees filed, a complaint in the reorganization court seeking to declare RITA unconstitutional and to enjoin its enforcement. On June 9, the reorganization court issued a preliminary injunction prohibiting the enforcement of §§ 106 and 110 of RITA. Although it suggested that RITA might have other constitutional infirmities, the court concluded that RITA’s employee protection provisions constituted an uncompensated taking of private property for a public purpose in violation of the Just Compensation Clause of the Fifth Amendment. The court reasoned: “[T]he Rock Island is a bankrupt corporation with no more operations, nothing left but assets and creditors and liquidation. Whatever obligations it may have to labor, it must arrive out of a contract that it had with labor, and any appropriate claims of labor under existing bankruptcy law is under the Railroad Retirement Act or any other statute which operates to fix the rights of labor. . . . But, these are all based upon existing law, existing rights, existing contracts, and that Congress believes it can legislate a $75 million labor protection burden on the. assets of the Rock Island comes to me as a startling concept.” App. 153a. Since it determined that the Rock Island is no longer subject to the obligations of an operating railroad, the court concluded that the Rock Island creditors’ and bondholders’ interests in the estate’s remaining assets may not be taken to serve the public’s interest in providing economic protection for displaced employees. Id., at 154a. Appellant appealed to this Court pursuant to 28 U. S. C. § 1252 (No. 80-415). Congress responded to the reorganization court’s injunction by enacting §701 of the Staggers Rail Act of 1980, Pub. L. 96-448, 94 Stat. 1959. With certain modifications, §701 of the Staggers Act re-enacted RITA §§106 and 110. The Staggers Act also added § 124 to RITA, 45 U. S. C. § 1018 (1976 ed., Supp. IV), which sought to avoid any implication that it had deprived appellees of any . Tucker Act remedy otherwise available for the Trustee and creditors to pursue their takings claim against the United States. The Staggers Act was signed into law on October 14, 1980. Six days previously, appellant and the United States had moved the reorganization court to vacate its June 9 injunction on the basis that the passage of the Staggers Act rendered the injunction moot. In addition, it was argued that no irreparable injury could be shown because the Staggers Act amendments provided that a remedy under the Tucker Act, 28 U. S. C. § 1346, would be available if the labor protection provisions were found to constitute a taking. On October 15, the reorganization court denied the motion to vacate and issued a new order enjoining implementation of the labor protection provisions of the “Rock Island Act, as amended and re-enacted by the Staggers Rail Act.” App. to Juris. Statement in No. 80-1289, p. 6a. Pursuant to § 124(a)(1) of RITA, as added by the Staggers Act, 45 U. S. C. § 1018(a)(1) (1976 ed., Supp. IV), appellant and the United States appealed this order to the Court of Appeals for the Seventh Circuit. The Court of Appeals affirmed without opinion by an equally divided vote. In re Chicago, R. I. & P. R. Co., 645 F. 2d 74 (1980) (en banc). This Court noted probable jurisdiction in No. 80-1239 and postponed the question of jurisdiction in No. 80-415 until our hearing the case on the merits. 451 U. S. 936 (1981). In No. 80-415 we order the District Court for the Northern District of Illinois to vacate its injunction of June 9, 1980. We affirm in No. 80-1239 because we conclude that RITA, as amended by the Staggers Act, is repugnant to Art. I, § 8, cl. 4, the Bankruptcy Clause, of the Constitution. We therefore find it unnecessary to determine whether the employee protections provisions of RITA violate any other provision of the Constitution. Article I, § 8, cl. 4, of the United States Constitution provides that Congress shall have power to “establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.” It is necessary first to determine whether the labor protection provisions of amended RITA are an exercise of Congress’ power under the Bankruptcy Clause, as contended by appellees, or under the Commerce Clause, as contended by appellant and the United States. Distinguishing a congressional exercise of power under the Commerce Clause from an exercise under the Bankruptcy Clause is admittedly not an easy task, for the two Clauses are closely related. As James Madison observed, “[t]he power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question.” The Federalist No. 42, p. 285 (N. Y. Heritage Press 1945). See Sturges v. Crowninshield, 4 Wheat. 122, 195 (1819) (Marshall, C. J.) (“The bankrupt law is said to grow out of the exigencies of commerce”). Although we have noted that “[t]he subject of bankruptcies is incapable of final definition,” we have previously defined “bankruptcy” as the “subject of the relations between an insolvent or nonpaying or fraudulent debtor and his creditors, extending to his and their relief.” Wright v. Union Central Life Ins. Co., 304 U. S. 502, 513-514 (1938). See Continental Illinois National Bank & Trust Co. v. Chicago, R. I. & P. R. Co., 294 U. S. 648, 673 (1935). Congress’ power under the Bankruptcy Clause “contemplate[s] an adjustment of a failing debtor’s obligations.” Ibid. This power “extends to all cases where the law causes to be distributed, the property of the debtor among his creditors. ” Hanover National Bank v. Moyses, 186 U. S. 181, 186 (1902). It “includes the power to discharge the debtor from his contracts and legal liabilities, as well as to distribute his property. The grant to Congress involves the power to impair the obligation of contracts, and this the States were forbidden to do.” Id., at 188. An examination of the employee protection provisions of RITA, we think, demonstrates that RITA is an exercise of Congress’ power under the Bankruptcy Clause. Section 106 authorizes the ICC to impose upon the Rock Island estate “a fair and equitable” employee protection arrangement. After such an employee protection arrangement is imposed, “the bankruptcy court shall immediately authorize and direct the Rock Island trustee to . . . immediately implement such arrangement.” § 106(c), 45 U. S. C. § 1005(c) (1976 ed., Supp. IV). Section 106(e)(2) provides that employee protection benefits shall be paid from Rock Island’s assets and employee claims shall be treated as administrative expenses of the Rock Island estate. 45 U. S. C. § 1005(e)(2) (1976 ed., Supp. IV). Section 108(a) provides that any employee who elects to receive benefits under §106 “shall be deemed to waive any employee protection benefits otherwise available to such employee” under the Bankruptcy Act, subtitle IV of Title 49 of the United States Code, or any applicable contract or agreement. 45 U. S. C. § 1007(a) (1976 ed., Supp. IV). Claims for “otherwise available” benefits are not accorded priority as an administrative expense of the estate. § 1007(c). Under §110, the United States guarantees the Rock Island’s employee protections obligations. 45 U. S. C. § 1008(a) (1976 ed., Supp. IV). As with the employee protection obligation itself, the guarantee is treated as an administrative expense of the Rock Island estate. § 1008(b). In sum, RITA imposes upon a bankrupt railroad the duty to pay large sums of money to its displaced employees, and then establishes a mechanism through which these “obligations” are to be satisfied. The Act provides that the claims of these employees are to be accorded priority over the claims of Rock Island’s commercial creditors, bondholders, and shareholders. It follows that the subject matter of RITA is the relationship between a bankrupt railroad and its creditors. See Wright v. Union Central Life Ins. Co., supra, at 513-514. The Act goes as far as to alter the relationship among the claimants to the Rock Island estate’s remaining assets. In enacting RITA, Congress did nothing less than to prescribe the manner in which the property of the Rock Island estate is to be distributed among its creditors. The events surrounding the passage of RITA, as well as its legislative history, indicate that Congress was exercising its powers under the Bankruptcy Clause. In RITA, Congress was responding to the crisis resulting from the demise of the Rock Island as an operating entity. The Act was passed almost five years after the Rock Island had initiated reorganization proceedings under § 77 of the Bankruptcy Act, and approximately 10 months after a strike had rendered the Rock Island unable to pay its operating expenses. In addition to providing for the continuation of the Rock Island under a directed service order until its lines could be acquired by other carriers, Congress sought to provide displaced employees with economic protection. Congress wanted to make liquidation of a railroad costly for the estate. As the House Conference Report explains, “it is the intention of Congress that employee protection be imposed in bankruptcy proceedings involving major rail carriers, for to do otherwise would be to promote liquidations, to the detriment of the employees and the public interest.” H. R. Conf. Rep. No. 96-1430, pp. 138-139 (1980). Moreover, Congress was attempting to eliminate the confusion that existed at the time as to whether the labor protection provisions of the Interstate Commerce Act, 49 U. S. C. §11347 (1976 ed., Supp. IV), applied to railroads that were in liquidation proceedings and arguably had no remaining common carrier responsibilities. See 126 Cong. Rec. 4870 (1980) (remarks of Sen. Kasse-baum). In RITA, Congress intended that a labor protection arrangement be included as a part of the liquidation of the Rock Island estate. We do not understand either appellant or the United States to argue that Congress may enact bankruptcy laws pursuant to its power under the Commerce Clause. Unlike the Commerce Clause, the Bankruptcy Clause itself contains an affirmative limitation or restriction upon Congress’ power: bankruptcy laws must be uniform throughout the United States. Such uniformity in the applicability of legislation is not required by the Commerce Clause. Hodel v. Indiana, 452 U. S. 314, 332 (1981); Secretary of Agriculture v. Central Roig Refining Co., 338 U. S. 604, 616 (1950) (distinguishing the Commerce Clause from Art. I, §8, cl. 4). Thus, if we were to hold that Congress had the power to enact nonuniform bankruptcy laws pursuant to the Commerce Clause, we would eradicate from the Constitution a limitation on the power of Congress to enact bankruptcy laws. It is therefore necessary for us to determine the nature of the uniformity required by the Bankruptcy Clause. Pursuant to Art. I, § 8, cl. 4, of the Constitution, Congress has power to enact bankruptcy laws that are uniform throughout the United States. Prior to today, this Court has never invalidated a bankruptcy law for lack of uniformity. The uniformity requirement is not a straitjaeket that forbids Congress to distinguish among classes of debtors, nor does it prohibit Congress from recognizing that state laws do not treat commercial transactions in a uniform manner. A bankruptcy law may be uniform and yet “may recognize the laws of the State in certain particulars, although such recognition may lead to different results in different States.” Stellwagen v. Clum, 245 U. S. 605, 613 (1918). Thus, uniformity does not require the elimination of any differences among the States in their laws governing commercial transactions. Vanston Bondholders Protective Committee v. Green, 329 U. S. 156, 172 (1946) (Frankfurter, J., concurring). In Hanover National Bank v. Moyses, 186 U. S., at 189-190, this Court held that Congress can give effect to the allowance of exemptions prescribed by state law without violating the uniformity requirement. The uniformity requirement, moreover, permits Congress to treat “railroad bankruptcies as a distinctive and special problem” and “does not deny Congress power to take into account differences that exist between different parts of the country, and to fashion legislation to resolve geographically isolated problems.” Regional Railroad Reorganization Act Cases, 419 U. S. 102, 159 (1974) (SR Act Cases). In the SR Act Cases, we upheld Congress’ response to the existing rail transportation crisis in the Northeast. Since no railroad reorganization proceeding was then pending outside of the region defined by the Regional Railroad Reorganization Act of 1973 (3R Act), 87 Stat. 985, 45 U. S. C. § 701 et seq., the Act in fact operated uniformly upon all railroads then in bankruptcy proceedings. But a quite different sort of “uniformity” question is presented in these cases. By its terms, RITA applies to only one regional bankrupt railroad. Only Rock Island’s creditors are affected by RITA’s employee protection provisions and only employees of the Rock Island may take benefit of the arrangement. Unlike the situation in the SR Act Cases, there are other railroads that are currently in reorganization proceedings, but these railroads are not affected by the employee protection provisions of RITA. The conclusion is thus inevitable that RITA is not a response either to the particular problems of major railroad bankruptcies or to any geographically isolated problem: it is a response to the problems caused by the bankruptcy of one railroad. The employee protection provisions of RITA cover neither a defined class of debtors nor a particular type of problem, but a particular problem of one bankrupt railroad. Albeit on a rather grand scale, RITA is nothing more than a private bill such as those Congress frequently enacts under its authority to spend money. The language of the Bankrupcty Clause itself compels us to hold that such a bankruptcy law is not within the power of Congress to enact. A law can hardly be said to be uniform throughout the country if it applies only to one debtor and can be enforced only by the one bankruptcy court having jurisdiction over that debtor. In re Sink, 27 F. 2d 361, 362 (WD Va. 1928), appeal dism’d per stipulation, 30 F. 2d 1019 (CA4 1929). As the legislative history to the Staggers Act indicates, supra, at 468, Congress might deem it sound policy to impose labor protection obligations in all bankruptcy proceedings involving major railroads. By its specific terms, however, RITA applies to only one regional bankrupt railroad, and cannot be said to apply uniformly even to major railroads in bankruptcy proceedings throughout the United States. The employee protection provisions of RITA therefore cannot be said to “apply equally to all creditors and all debtors.” SR Act Cases, supra, at 160. Although the debate in the Constitutional Convention regarding the Bankruptcy Clause was meager, we think it lends some support to our conclusion that the uniformity requirement of the Clause prohibits Congress from enacting bankruptcy laws that specifically apply to the affairs of only one named debtor. The subject of bankruptcy was first introduced on August 29, 1787, by Charles Pinckney during discussion of the Full Faith and Credit Clause. Pinckney proposed the following grant of authority to Congress: “To establish uniform laws upon the subject of bankruptcies, and respecting the damages arising on the protest of foreign bills of exchange.” 2 M. Farrand, Records of the Federal Convention of 1787, p. 447 (1911). Two days later, John Rutledge recommended that the following be added to Congress’ powers: “To establish uniform laws on the subject of bankruptcies.” Id., at 483. The Bankruptcy Clause was adopted on September 3, 1787, with only Roger Sherman of Connecticut voting against. Id., at 489. Prior to the drafting of the Constitution, at least four States followed the practice of passing private Acts to relieve individual debtors. Nadelmann, On the Origin of the Bankruptcy Clause, 1 Am. J. Legal Hist. 215, 221-223 (1957). Given the sovereign status of the States, questions were raised as to whether one State had to recognize the relief given to a debtor by another State. See Millar v. Hall, 1 Dall. 229 (Pa. Sup. Ct. 1788); James v. Allen, 1 Dall. 188 (Pa. Ct. Common Pleas 1786). Uniformity among state debtor insolvency laws was an impossibility and the practice of passing private bankruptcy laws was subject to abuse if the legislators were less than honest. Thus, it is not surprising that the Bankruptcy Clause was introduced during discussion of the Full Faith and Credit Clause. The Framers sought to provide Congress with the power to enact uniform laws on the subject enforceable among the States. See Nadelmann, supra, at 224-227. Similarly, the Bankruptcy Clause’s uniformity requirement was drafted in order to prohibit Congress from enacting private bankruptcy laws. See H. Black, Constitutional Prohibitions 6 (1887) (States had discriminated against British creditors). The States’ practice of enacting private bills had rendered uniformity impossible. Our holding today does not impair Congress’ ability under the Bankruptcy Clause to define classes of debtors and to structure relief accordingly. We have upheld bankruptcy laws that apply to a particular industry in a particular region. See SR Act Cases, 419 U. S. 102 (1974). The uniformity requirement, however, prohibits Congress from enacting a bankruptcy law that, by definition, applies only to one regional debtor. To survive scrutiny under the Bankruptcy Clause, a law must at least apply uniformly to a defined class of debtors. A bankruptcy law, such as RITA, confined as it is to the affairs of one named debtor can hardly be considered uniform. To hold otherwise would allow Congress to repeal the uniformity requirement from Art. I, §8, cl. 4, of the Constitution. Since that result may be accomplished only by the process prescribed in that document for its amendment, the judgment of the Court of Appeals in No. 80-1239 is affirmed, and the judgment of the District Court in No. 80-415 is vacated with instructions to dismiss the complaint as moot. See United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). It is so ordered. Section 17(a) of MRRA provides in relevant part: “In authorizing any abandonment pursuant to this section, the court shall require the carrier to provide a fair arrangement at least as protective of the interests of employees as that required under section 11347 of title 49.” 45 U. S. C. § 915(a) (1976 ed., Supp. IV). Title 49 U. S. C. § 11347 (1976 ed., Supp. IV) provides in relevant part: “[T]he Interstate Commerce Commission shall require the carrier to provide a fair arrangement at least as protective of the interests of employees who are affected ... as the terms imposed under this section before February 5, 1976, and the terms established under section 565 of title 45. . . . The arrangement and the order approving the transaction must require that the employees of the affected rail carrier will not be in a worse position related to their employment as a result of the transaction during the 4 years following the effective date of the final action of the Commission.” Section 106, as originally enacted, provided in relevant part: “(a) No later than 10 days after the date of enactment of this Act, in order to avoid disruption of rail service and undue displacement of employees, the Rock Island Railroad and labor organizations representing the employees of such railroad, with the assistance of the National Mediation Board, may enter into an agreement providing protection for employees of such railroad who are adversely affected as a result of a reduction in service by such railroad. Such employee protection may include, but need not be limited to, employee relocation incentive compensation, moving expenses, and separation allowances. “(b) If the Rock Island Railroad and the labor organizations representing the employees of such railroad are unable to enter into an employee protection agreement under subsection (a) of this section within 10 days after the date of enactment of this Act, the parties shall immediately submit the matter to the Commission. The Commission shall impose upon the parties by appropriate order a fair and equitable arrangement with respect to employee protection no later than 30 days after the date of enactment of this Act, unless the Rock Island Railroad and the authorized representatives of its employees have by then entered into a labor protection agreement. For purposes of this subsection, the term ‘fair and equitable’ means no less protective of the interests of employees than protection afforded under section 9 of the Milwaukee Railroad Restructuring Act (45 U. S. C. 908), subject to the limitations set forth in section 110 of this title. “(c) If an employee protection arrangement is imposed by the Commission under (b) of this section, the bankruptcy court shall immediately authorize and direct the Rock Island Railroad trustee to, and the Rock Island Railroad trustee and the labor organizations representing the employees of the railroad shall, immediately implement such arrangement. “(e)(1) Any claim of an employee for benefits and allowances under an employee protection agreement or arrangement entered into under this section shall be filed with the [Railroad Retirement] Board .... “(2) Benefits and allowances under such agreement or arrangement entered into under this section shall be paid by the Rock Island Railroad from its own assets or in accordance with section 110 of this title, and claims of employees for such benefits and allowances shall be treated as administrative expenses of the estate of the Rock Island Railroad.” 94 Stat. 401-402 (emphasis added). Section 110, as originally enacted, provided in relevant part: “(a) The Secretary . . . shall guarantee obligations of the Rock Island Railroad for purposes of providing employee protection in accordance with the terms of any employee protection agreement or arrangement entered into under section 106 of this title. “(b) Any obligation guaranteed pursuant to this section shall be treated as an administrative expense of the estate of the Rock Island Railroad. “(c) The aggregate unpaid principal amount of obligations which may be guaranteed by the Secretary pursuant to. this section shall not exceed $75,000,000. “(d) The total liability of the Rock Island Railroad in connection with benefits and allowances provided under any employee protection agreement or arrangement entered into under section 106 of this title shall not exceed $75,000,000. “(e) Except in connection with obligations guaranteed under this section, the United States shall incur no liability in connection with any employee protection agreement or arrangement entered into under section 106 of this title.” 94 Stat. 403. Those employees hired by other carriers are covered by the March 4, 1980, agreement. Supra, at 460. In §§ 106(a) and (b), the respective time limits were shortened to five days after the enactment of the Staggers Act. The judicial review provisions of § 106(d) were modified substantially. In § 110(e), Congress added the words “to employees” after “liability,” apparently in reference to the Tucker Act remedy alluded to in new § 124(c). Section 124(c) provides that “[njothing in this chapter or in the Milwaukee Railroad Restructuring Act. . . shall limit the right of any person to commence an action in the United States Court of Claims under . . . the Tucker Act-” 45 U. S. C. § 1018(c) (1976 ed., Supp. IV). Section 124(a)(1), 45 U. S. C. § 1018(a)(1) (1976 ed., Supp. IV), provides that “any decision of the bankruptcy court with respect to the constitutionality of any provision of this chapter. . . shall be taken to the United States Court of Appeals for the Seventh Circuit.” The injunction of June 9, 1980, was rendered moot by the enactment of the Staggers Act which re-enacted and amended the sections of RITA declared unconstitutional by the reorganization court. In addition to the Bankruptcy Clause and the Just Compensation Clause of the Fifth Amendment, appellees have challenged RITA pursuant to principles of separation of powers, the equal protection component of the Fifth Amendment, and the Due Process Clause of the Fifth Amendment. We find it unnecessary to reach any of these additional contentions. By contrast, the 3R Act applied to the reorganization proceedings of 8 major railroads and 15 lessors of leased lines of the Penn Central. SR Act Cases, 419 U. S., at 108-109, n. 3. At the time RITA was enacted, the New York, Susquehanna and Western Railroad was in the process of liquidation under § 77 of the Bankruptcy Act of 1898. In re New York, S. & W. R. Co., 504 F. Supp. 851 (NJ 1980), aff'd, 673 F. 2d 1301 (CA3 1981). Another bankrupt railroad is undergoing liquidation proceedings under the Bankruptcy Act of 1978, 11 U. S. C. §§1161-1174 (1976 ed., Supp. IV). In re Auto-Train Corp., 11 B. R. 418 (Bkrtcy. DC 1981). The Milwaukee Road is in an income-based reorganization. That railroad is subject to its own employee protection requirements under §§ 5 and 9 of the MRRA, 45 U. S. C. §§ 904, 908 (1976 ed., Supp. IV). As with the case of §§ 106 and 108 of RITA, these sections of the MRRA apply only to one railroad. We have no occasion in these cases to consider the constitutionality of these provisions of the MRRA. Nevertheless, it is no argument that RITA is uniform because another statute imposes similar obligations upon another railroad, as the United States appears to contend. The issue is not whether Congress has discriminated against the Rock Island estate, but whether RITA’s employee protection provisions are uniform bankruptcy laws. The uniformity requirement of the Bankruptcy Clause is not an Equal Protection Clause for bankrupts. By its very terms, RITA applies only to the Rock Island. 45 U. S. C. §§ 1001, 1005, 1007-1008 (1976 ed., Supp. IV). Thus, we have no occasion to review a bankruptcy law which defines by identifying characteristics a particular class of debtors. Cf. SR Act Cases, supra, at 156-160. “Mr. Sherman observed that Bankruptcies were in some cases punishable with death by the laws of England — & He did not chuse to grant a power by which that might be done here.” 2 M. Farrand, Records of the Federal Convention of 1787, p. 489 (1911). The Framers’ intent to achieve uniformity among the Nation’s bankruptcy laws is also reflected in the Contract Clause. Apart from and independently of the Supremacy Clause, the Contract Clause prohibits the States from enacting debtor relief laws which discharge the debtor from his obligations, Sturges v. Crowninshield, 4 Wheat. 122, 197-199 (1819), unless the law operates prospectively. Ogden v. Saunders, 12 Wheat. 213 (1827). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice ALITOdelivered the opinion of the Court. Drunk drivers take a grisly toll on the Nation's roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year. To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level. But determining whether a driver's BAC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed "implied consent laws." These laws impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State's drunk-driving laws. In the past, the typical penalty for noncompliance was suspension or revocation of the motorist's license. The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired. The question presented is whether such laws violate the Fourth Amendment's prohibition against unreasonable searches. I The problem of drunk driving arose almost as soon as motor vehicles came into use. See J. Jacobs, Drunk Driving: An American Dilemma 57 (1989) (Jacobs). New Jersey enacted what was perhaps the Nation's first drunk-driving law in 1906, 1906 N.J. Laws pp. 186, 196, and other States soon followed. These early laws made it illegal to drive while intoxicated but did not provide a statistical definition of intoxication. As a result, prosecutors normally had to present testimony that the defendant was showing outward signs of intoxication, like imbalance or slurred speech. R. Donigan, Chemical Tests and the Law 2 (1966) (Donigan). As one early case put it, "[t]he effects resulting from the drinking of intoxicating liquors are manifested in various ways, and before any one can be shown to be under the influence of intoxicating liquor it is necessary for some witness to prove that some one or more of these effects were perceptible to him." State v. Noble, 119 Ore. 674, 677, 250 P. 833, 834 (1926). The 1930's saw a continued rise in the number of motor vehicles on the roads, an end to Prohibition, and not coincidentally an increased interest in combating the growing problem of drunk driving. Jones, Measuring Alcohol in Blood and Breath for Forensic Purposes-A Historical Review, 8 For. Sci. Rev. 13, 20, 33 (1996) (Jones). The American Medical Association and the National Safety Council set up committees to study the problem and ultimately concluded that a driver with a BAC of 0.15% or higher could be presumed to be inebriated. Donigan 21-22. In 1939, Indiana enacted the first law that defined presumptive intoxication based on BAC levels, using the recommended 0.15% standard. 1939 Ind. Acts p. 309; Jones 21. Other States soon followed and then, in response to updated guidance from national organizations, lowered the presumption to a BAC level of 0.10%. Donigan 22-23. Later, States moved away from mere presumptions that defendants might rebut, and adopted laws providing that driving with a 0.10% BAC or higher was per se illegal. Jacobs 69-70. Enforcement of laws of this type obviously requires the measurement of BAC. One way of doing this is to analyze a sample of a driver's blood directly. A technician with medical training uses a syringe to draw a blood sample from the veins of the subject, who must remain still during the procedure, and then the sample is shipped to a separate laboratory for measurement of its alcohol concentration. See 2 R. Erwin, Defense of Drunk Driving Cases §§ 17.03-17.04 (3d ed. 2015) (Erwin). Although it is possible for a subject to be forcibly immobilized so that a sample may be drawn, many States prohibit drawing blood from a driver who resists since this practice helps "to avoid violent confrontations." South Dakota v. Neville, 459 U.S. 553, 559, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). The most common and economical method of calculating BAC is by means of a machine that measures the amount of alcohol in a person's breath. National Highway Traffic Safety Admin. (NHTSA), E. Haire, W. Leaf, D. Preusser, & M. Solomon, Use of Warrants to Reduce Breath Test Refusals: Experiences from North Carolina 1 (No. 811461, Apr. 2011). One such device, called the "Drunkometer," was invented and first sold in the 1930's. Note, 30 N.C.L. Rev. 302, 303, and n. 10 (1952). The test subject would inflate a small balloon, and then the test analyst would release this captured breath into the machine, which forced it through a chemical solution that reacted to the presence of alcohol by changing color. Id., at 303. The test analyst could observe the amount of breath required to produce the color change and calculate the subject's breath alcohol concentration and by extension, BAC, from this figure. Id., at 303-304. A more practical machine, called the "Breathalyzer," came into common use beginning in the 1950's, relying on the same basic scientific principles. 3 Erwin § 22.01, at 22-3; Jones 34. Over time, improved breath test machines were developed. Today, such devices can detect the presence of alcohol more quickly and accurately than before, typically using infrared technology rather than a chemical reaction. 2 Erwin § 18A.01; Jones 36. And in practice all breath testing machines used for evidentiary purposes must be approved by the National Highway Traffic Safety Administration. See 1 H. Cohen & J. Green, Apprehending and Prosecuting the Drunk Driver § 7.04[7] (LexisNexis 2015). These machines are generally regarded as very reliable because the federal standards require that the devices produce accurate and reproducible test results at a variety of BAC levels, from the very low to the very high. 77 Fed.Reg. 35747 (2012); 2 Erwin § 18.07; Jones 38; see also California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Measurement of BAC based on a breath test requires the cooperation of the person being tested. The subject must take a deep breath and exhale through a mouthpiece that connects to the machine. Berger, How Does it Work? Alcohol Breath Testing, 325 British Medical J. 1403 (2002) (Berger). Typically the test subject must blow air into the device " 'for a period of several seconds' " to produce an adequate breath sample, and the process is sometimes repeated so that analysts can compare multiple samples to ensure the device's accuracy. Trombetta, supra, at 481, 104 S.Ct. 2528; see also 2 Erwin § 21.04[2][b](L), at 21-14 (describing the Intoxilyzer 4011 device as requiring a 12-second exhalation, although the subject may take a new breath about halfway through). Modern breath test machines are designed to capture so-called "deep lung" or alveolar air. Trombetta, supra, at 481, 104 S.Ct. 2528. Air from the alveolar region of the lungs provides the best basis for determining the test subject's BAC, for it is in that part of the lungs that alcohol vapor and other gases are exchanged between blood and breath. 2 Erwin § 18.01[2][a], at 18-7. When a standard infrared device is used, the whole process takes only a few minutes from start to finish. Berger 1403; 2 Erwin § 18A.03[2], at 18A-14. Most evidentiary breath tests do not occur next to the vehicle, at the side of the road, but in a police station, where the controlled environment is especially conducive to reliable testing, or in some cases in the officer's patrol vehicle or in special mobile testing facilities. NHTSA, A. Berning et al., Refusal of Intoxication Testing: A Report to Congress 4, and n. 5 (No. 811098, Sept. 2008). Because the cooperation of the test subject is necessary when a breath test is administered and highly preferable when a blood sample is taken, the enactment of laws defining intoxication based on BAC made it necessary for States to find a way of securing such cooperation. So-called "implied consent" laws were enacted to achieve this result. They provided that cooperation with BAC testing was a condition of the privilege of driving on state roads and that the privilege would be rescinded if a suspected drunk driver refused to honor that condition. Donigan 177. The first such law was enacted by New York in 1953, and many other States followed suit not long thereafter. Id., at 177-179. In 1962, the Uniform Vehicle Code also included such a provision. Id., at 179. Today, "all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense." Missouri v. McNeely, 569 U.S. ----, ----, 133 S.Ct. 1552, 1566, 185 L.Ed.2d 696 (2013)(plurality opinion). Suspension or revocation of the motorist's driver's license remains the standard legal consequence of refusal. In addition, evidence of the motorist's refusal is admitted as evidence of likely intoxication in a drunk-driving prosecution. See ibid. In recent decades, the States and the Federal Government have toughened drunk-driving laws, and those efforts have corresponded to a dramatic decrease in alcohol-related fatalities. As of the early 1980's, the number of annual fatalities averaged 25,000; by 2014, the most recent year for which statistics are available, the number had fallen to below 10,000. Presidential Commission on Drunk Driving 1 (Nov. 1983); NHTSA, Traffic Safety Facts, 2014 Data, Alcohol-Impaired Driving 2 (No. 812231, Dec. 2015) (NHTSA, 2014 Alcohol-Impaired Driving). One legal change has been further lowering the BAC standard from 0.10% to 0.08%. See 1 Erwin, § 2.01[1], at 2-3 to 2-4. In addition, many States now impose increased penalties for recidivists and for drivers with a BAC level that exceeds a higher threshold. In North Dakota, for example, the standard penalty for first-time drunk-driving offenders is license suspension and a fine. N.D. Cent.Code Ann. § 39-08-01(5)(a)(1)(Supp.2015); § 39-20-04.1(1). But an offender with a BAC of 0.16% or higher must spend at least two days in jail. § 39-08-01(5)(a)(2). In addition, the State imposes increased mandatory minimum sentences for drunk-driving recidivists. §§ 39-08-01(5)(b)-(d). Many other States have taken a similar approach, but this new structure threatened to undermine the effectiveness of implied consent laws. If the penalty for driving with a greatly elevated BAC or for repeat violations exceeds the penalty for refusing to submit to testing, motorists who fear conviction for the more severely punished offenses have an incentive to reject testing. And in some States, the refusal rate is high. On average, over one-fifth of all drivers asked to submit to BAC testing in 2011 refused to do so. NHTSA, E. Namuswe, H. Coleman, & A. Berning, Breath Test Refusal Rates in the United States-2011 Update 1 (No. 811881, Mar. 2014). In North Dakota, the refusal rate for 2011 was a representative 21%. Id., at 2. Minnesota's was below average, at 12%. Ibid. To combat the problem of test refusal, some States have begun to enact laws making it a crime to refuse to undergo testing. Minnesota has taken this approach for decades. See 1989 Minn. Laws p. 1658; 1992 Minn. Laws p. 1947. And that may partly explain why its refusal rate now is below the national average. Minnesota's rate is also half the 24% rate reported for 1988, the year before its first criminal refusal law took effect. See Ross, Simon, Cleary, Lewis, & Storkamp, Causes and Consequences of Implied Consent Refusal, 11 Alcohol, Drugs and Driving 57, 69 (1995). North Dakota adopted a similar law, in 2013, after a pair of drunk-driving accidents claimed the lives of an entire young family and another family's 5- and 9-year-old boys. 2013 N.D. Laws pp. 1087-1088 (codified at §§ 39-08-01(1)-(3)). The Federal Government also encourages this approach as a means for overcoming the incentive that drunk drivers have to refuse a test. NHTSA, Refusal of Intoxication Testing, at 20. II A Petitioner Danny Birchfield accidentally drove his car off a North Dakota highway on October 10, 2013. A state trooper arrived and watched as Birchfield unsuccessfully tried to drive back out of the ditch in which his car was stuck. The trooper approached, caught a strong whiff of alcohol, and saw that Birchfield's eyes were bloodshot and watery. Birchfield spoke in slurred speech and struggled to stay steady on his feet. At the trooper's request, Birchfield agreed to take several field sobriety tests and performed poorly on each. He had trouble reciting sections of the alphabet and counting backwards in compliance with the trooper's directions. Believing that Birchfield was intoxicated, the trooper informed him of his obligation under state law to agree to a BAC test. Birchfield consented to a roadside breath test. The device used for this sort of test often differs from the machines used for breath tests administered in a police station and is intended to provide a preliminary assessment of the driver's BAC. See, e.g., Berger 1403. Because the reliability of these preliminary or screening breath tests varies, many jurisdictions do not permit their numerical results to be admitted in a drunk-driving trial as evidence of a driver's BAC. See generally 3 Erwin § 24.03[1]. In North Dakota, results from this type of test are "used only for determining whether or not a further test shall be given." N.D. Cent.Code Ann. § 39-20-14(3). In Birchfield's case, the screening test estimated that his BAC was 0.254%, more than three times the legal limit of 0.08%. See § 39-08-01(1)(a). The state trooper arrested Birchfield for driving while impaired, gave the usual Miranda warnings, again advised him of his obligation under North Dakota law to undergo BAC testing, and informed him, as state law requires, see § 39-20-01(3)(a), that refusing to take the test would expose him to criminal penalties. In addition to mandatory addiction treatment, sentences range from a mandatory fine of $500 (for first-time offenders) to fines of at least $2,000 and imprisonment of at least one year and one day (for serial offenders). § 39-08-01(5). These criminal penalties apply to blood, breath, and urine test refusals alike. See §§ 39-08-01(2), 39-20-01, 39-20-14. Although faced with the prospect of prosecution under this law, Birchfield refused to let his blood be drawn. Just three months before, Birchfield had received a citation for driving under the influence, and he ultimately pleaded guilty to that offense. State v. Birchfield, Crim. No. 30-2013-CR-00720 (Dist. Ct. Morton Cty., N.D., Jan. 27, 2014). This time he also pleaded guilty-to a misdemeanor violation of the refusal statute-but his plea was a conditional one: while Birchfield admitted refusing the blood test, he argued that the Fourth Amendment prohibited criminalizing his refusal to submit to the test. The State District Court rejected this argument and imposed a sentence that accounted for his prior conviction. Cf. § 39-08-01(5)(b). The sentence included 30 days in jail (20 of which were suspended and 10 of which had already been served), 1 year of unsupervised probation, $1,750 in fine and fees, and mandatory participation in a sobriety program and in a substance abuse evaluation. App. to Pet. for Cert. in No. 14-1468, p. 20a. On appeal, the North Dakota Supreme Court affirmed. 2015 ND 6, 858 N.W.2d 302. The court found support for the test refusal statute in this Court's McNeely plurality opinion, which had spoken favorably about "acceptable 'legal tools' with'significant consequences' for refusing to submit to testing." 858 N.W.2d, at 307(quoting McNeely, 569 U.S., at ----, 133 S.Ct., at 1566). B On August 5, 2012, Minnesota police received a report of a problem at a South St. Paul boat launch. Three apparently intoxicated men had gotten their truck stuck in the river while attempting to pull their boat out of the water. When police arrived, witnesses informed them that a man in underwear had been driving the truck. That man proved to be William Robert Bernard, Jr., petitioner in the second of these cases. Bernard admitted that he had been drinking but denied driving the truck (though he was holding its keys) and refused to perform any field sobriety tests. After noting that Bernard's breath smelled of alcohol and that his eyes were bloodshot and watery, officers arrested Bernard for driving while impaired. Back at the police station, officers read Bernard Minnesota's implied consent advisory, which like North Dakota's informs motorists that it is a crime under state law to refuse to submit to a legally required BAC test. See Minn.Stat. § 169A.51, subd. 2 (2014). Aside from noncriminal penalties like license revocation, § 169A.52, subd. 3, test refusal in Minnesota can result in criminal penalties ranging from no more than 90 days' imprisonment and up to a $1,000 fine for a misdemeanor violation to seven years' imprisonment and a $14,000 fine for repeat offenders, § 169A.03, subd. 12; § 169A.20, subds. 2-3; § 169A.24, subd. 2; § 169A.27, subd. 2. The officers asked Bernard to take a breath test. After he refused, prosecutors charged him with test refusal in the first degree because he had four prior impaired-driving convictions. 859 N.W.2d 762, 765, n. 1 (Minn.2015)(case below). First-degree refusal carries the highest maximum penalties and a mandatory minimum 3-year prison sentence. § 169A.276, subd. 1. The Minnesota District Court dismissed the charges on the ground that the warrantless breath test demanded of Bernard was not permitted under the Fourth Amendment. App. to Pet. for Cert. in No. 14-1470, pp. 48a, 59a. The Minnesota Court of Appeals reversed, id., at 46a, and the State Supreme Court affirmed that judgment. Based on the longstanding doctrine that authorizes warrantless searches incident to a lawful arrest, the high court concluded that police did not need a warrant to insist on a test of Bernard's breath. 859 N.W.2d, at 766-772. Two justices dissented. Id., at 774-780(opinion of Page and Stras, JJ.). C A police officer spotted our third petitioner, Steve Michael Beylund, driving the streets of Bowman, North Dakota, on the night of August 10, 2013. The officer saw Beylund try unsuccessfully to turn into a driveway. In the process, Beylund's car nearly hit a stop sign before coming to a stop still partly on the public road. The officer walked up to the car and saw that Beylund had an empty wine glass in the center console next to him. Noticing that Beylund also smelled of alcohol, the officer asked him to step out of the car. As Beylund did so, he struggled to keep his balance. The officer arrested Beylund for driving while impaired and took him to a nearby hospital. There he read Beylund North Dakota's implied consent advisory, informing him that test refusal in these circumstances is itself a crime. See N.D. Cent.Code Ann. § 39-20-01(3)(a). Unlike the other two petitioners in these cases, Beylund agreed to have his blood drawn and analyzed. A nurse took a blood sample, which revealed a blood alcohol concentration of 0.250%, more than three times the legal limit. Given the test results, Beylund's driver's license was suspended for two years after an administrative hearing. Beylund appealed the hearing officer's decision to a North Dakota District Court, principally arguing that his consent to the blood test was coerced by the officer's warning that refusing to consent would itself be a crime. The District Court rejected this argument, and Beylund again appealed. The North Dakota Supreme Court affirmed. In response to Beylund's argument that his consent was insufficiently voluntary because of the announced criminal penalties for refusal, the court relied on the fact that its then-recent Birchfield decision had upheld the constitutionality of those penalties. 2015 ND 18, ¶¶ 14-15, 859 N.W.2d 403, 408-409. The court also explained that it had found consent offered by a similarly situated motorist to be voluntary, State v. Smith, 2014 ND 152, 849 N.W.2d 599. In that case, the court emphasized that North Dakota's implied consent advisory was not misleading because it truthfully related the penalties for refusal. Id., at 606. We granted certiorari in all three cases and consolidated them for argument, see 577 U.S. ----, 136 S.Ct. 614, 193 L.Ed.2d 494 (2015), in order to decide whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream. III As our summary of the facts and proceedings in these three cases reveals, the cases differ in some respects. Petitioners Birchfield and Beylund were told that they were obligated to submit to a blood test, whereas petitioner Bernard was informed that a breath test was required. Birchfield and Bernard each refused to undergo a test and was convicted of a crime for his refusal. Beylund complied with the demand for a blood sample, and his license was then suspended in an administrative proceeding based on test results that revealed a very high blood alcohol level. Despite these differences, success for all three petitioners depends on the proposition that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate. If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant. See, e.g., Conn. Gen.Stat. § 54-33d(2009); Fla. Stat. § 933.15 (2015); N.J. Stat. Ann. § 33:1-63 (West 1994); 18 U.S.C. § 1501; cf. Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968)("When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search"). And by the same token, if such warrantless searches are constitutional, there is no obstacle under federal law to the admission of the results that they yield in either a criminal prosecution or a civil or administrative proceeding. We therefore begin by considering whether the searches demanded in these cases were consistent with the Fourth Amendment. IV The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Amendment thus prohibits "unreasonable searches," and our cases establish that the taking of a blood sample or the administration of a breath test is a search. See Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 616-617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); Schmerber v. California, 384 U.S. 757, 767-768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The question, then, is whether the warrantless searches at issue here were reasonable. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995)("As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is'reasonableness' "). "[T]he text of the Fourth Amendment does not specify when a search warrant must be obtained." Kentucky v. King, 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011); see also California v. Acevedo, 500 U.S. 565, 581, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991)(Scalia, J., concurring in judgment) ("What [the text] explicitly states regarding warrants is by way of limitation upon their issuance rather than requirement of their use"). But "this Court has inferred that a warrant must [usually] be secured." King, 563 U.S., at 459, 131 S.Ct. 1849. This usual requirement, however, is subject to a number of exceptions. Ibid. We have previously had occasion to examine whether one such exception-for "exigent circumstances"-applies in drunk-driving investigations. The exigent circumstances exception allows a warrantless search when an emergency leaves police insufficient time to seek a warrant. Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). It permits, for instance, the warrantless entry of private property when there is a need to provide urgent aid to those inside, when police are in hot pursuit of a fleeing suspect, and when police fear the imminent destruction of evidence. King, supra, at 460, 131 S.Ct. 1849. In Schmerber v. California, we held that drunk driving may present such an exigency. There, an officer directed hospital personnel to take a blood sample from a driver who was receiving treatment for car crash injuries. 384 U.S., at 758, 86 S.Ct. 1826. The Court concluded that the officer "might reasonably have believed that he was confronted with an emergency" that left no time to seek a warrant because "the percentage of alcohol in the blood begins to diminish shortly after drinking stops." Id., at 770, 86 S.Ct. 1826. On the specific facts of that case, where time had already been lost taking the driver to the hospital and investigating the accident, the Court found no Fourth Amendment violation even though the warrantless blood draw took place over the driver's objection. Id., at 770-772, 86 S.Ct. 1826. More recently, though, we have held that the natural dissipation of alcohol from the bloodstream does not always constitute an exigency justifying the warrantless taking of a blood sample. That was the holding of Missouri v. McNeely, 569 U.S. ----, 133 S.Ct. 1552, 185 L.Ed.2d 696where the State of Missouri was seeking a per se rule that "whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC evidence is inherently evanescent." Id., at ----, 133 S.Ct., at 1560(opinion of the Court). We disagreed, emphasizing that Schmerber had adopted a case-specific analysis depending on "all of the facts and circumstances of the particular case." 569 U.S., at ----, 133 S.Ct., at 1560. We refused to "depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State." Id., at ----, 133 S.Ct., at 1561. While emphasizing that the exigent-circumstances exception must be applied on a case-by-case basis, the McNeely Court noted that other exceptions to the warrant requirement "apply categorically" rather than in a "case-specific" fashion. Id., at ----, n. 3, 133 S.Ct., at 1559, n. 3. One of these, as the McNeely opinion recognized, is the long-established rule that a warrantless search may be conducted incident to a lawful arrest. See ibid. But the Court pointedly did not address any potential justification for warrantless testing of drunk-driving suspects except for the exception "at issue in th[e] case," namely, the exception for exigent circumstances. Id., at ----, 133 S.Ct., at 1558. Neither did any of the Justices who wrote separately. See id., at ---- - ----, 133 S.Ct., at 1568-1569(KENNEDY, J., concurring in part); id., at ---- - ----, 133 S.Ct., at 1569-1574(ROBERTS, C.J., concurring in part and dissenting in part); id., at ---- - ----, 133 S.Ct., at 1574-1578(THOMAS, J., dissenting). In the three cases now before us, the drivers were searched or told that they were required to submit to a search after being placed under arrest for drunk driving. We therefore consider how the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests. V A The search-incident-to-arrest doctrine has an ancient pedigree. Well before the Nation's founding, it was recognized that officers carrying out a lawful arrest had the authority to make a warrantless search of the arrestee's person. An 18th-century manual for justices of the peace provides a representative picture of usual practice shortly before the Fourth Amendment's adoption: "[A] thorough search of the felon is of the utmost consequence to your own safety, and the benefit of the public, as by this means he will be deprived of instruments of mischief, and evidence may probably be found on him sufficient to convict him, of which, if he has either time or opportunity allowed him, he will besure [sic] to find some means to get rid of." The Conductor Generalis 117 (J. Parker ed. 1788) (reprinting S. Welch, Observations on the Office of Constable 19 (1754)). One Fourth Amendment historian has observed that, prior to American independence, "[a]nyone arrested could expect that not only his surface clothing but his body, luggage, and saddlebags would be searched and, perhaps, his shoes, socks, and mouth as well." W. Cuddihy, The Fourth Amendment: Origins and Original Meaning: 602-1791, p. 420 (2009). No historical evidence suggests that the Fourth Amendment altered the permissible bounds of arrestee searches. On the contrary, legal scholars agree that "the legitimacy of body searches as an adjunct to the arrest process had been thoroughly established in colonial times, so much so that their constitutionality in 1789 can not be doubted." Id., at 752; see also T. Taylor, Two Studies in Constitutional Interpretation 28-29, 39, 45 (1969); Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L.J. 393, 401 (1995). Few reported cases addressed the legality of such searches before the 19th century, apparently because the point was not much contested. In the 19th century, the subject came up for discussion more often, but court decisions and treatises alike confirmed the searches' broad acceptance. E.g., Holker v. Hennessey, 141 Mo. 527, 539-540, 42 S.W. 1090, 1093 (1897); Ex parte Hurn, 92 Ala. 102, 112, 9 So. 515, 519 (1891); Thatcher v. Weeks, 79 Me. 547, 548-549, 11 A. 599 (1887); Reifsnyder v. Lee, 44 Iowa 101, 103 (1876); F. Wharton, Criminal Pleading and Practice § 60, p. 45 (8th ed. 1880); 1 J. Bishop, Criminal Procedure § 211, p. 127 (2d ed. 1872). When this Court first addressed the question, we too confirmed (albeit in dicta) "the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidence of crime." Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The exception quickly became a fixture in our Fourth Amendment case law. But in the decades that followed, we grappled repeatedly with the question of the authority of arresting officers to search the area surrounding the arrestee, and our decisions reached results that were not easy to reconcile. See, e.g., United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 76 L.Ed. 877 (1932)(forbidding "unrestrained" search of room where arrest was made); Harris v. United States, 331 U.S. 145, 149, 152, 67 S.Ct Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice White delivered the opinion of the Court. The Mississippi Supreme Court upheld the death sentence imposed on Chandler Clemons even though the jury instruction regarding one of the aggravating factors pressed by the State, that the murder was “especially heinous, atrocious, or cruel,” was constitutionally invalid in light of our decision in Maynard v. Cartwright, 486 U. S. 356 (1988). Although we hold that the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review, we vacate the judgment below and remand, because it is unclear whether the Mississippi Supreme Court correctly employed either of these methods. I On the evening of April 17, 1987, petitioner Clemons complained to friends that he needed money and suggested a robbery of a pizza delivery man. Clemons used a pay telephone to order a pizza to be delivered to an apartment complex. He and two others, Calvin and Hay, went to the complex in a car and waited. When the pizza delivery vehicle arrived, Clemons and Hay got out of the car; Clemons carried a shotgun belonging to Hay. Clemons stopped and entered the delivery vehicle and ordered the driver, Arthur Shorter, to get out of the car. Shorter was told to take any money he had out of his pockets, which he did. Clemons then told Shorter to lie down, took a bag of money and some pizza from the delivery vehicle, and was about to return to the car where Calvin was sitting when Hay asked if Shorter had seen Clemons’ face. When Clemons answered in the affirmative, Hay told him he had to kill Shorter. Shorter begged for his life but Clemons shot him and got into the car with Hay and Calvin. As they drove away, Calvin looked back and saw Shorter raise his head once. Shorter died shortly thereafter. The three men eventually went home. Clemons disposed of the shotgun in a hole in his backyard. Calvin, however, later that night related the robbery and shooting incident to his sister’s friend, who happened to be a county jailer. The next day Clemons was arrested at his home and later made a videotaped statement in which he admitted being part of the group that robbed Shorter but denied foreknowledge of the robbery plan and denied that he had been the killer. Before trial Clemons also told the Sheriff where he had hidden the gun. Clemons was indicted for capital murder and, after a change of venue, was tried before a jury. The principal witness against Clemons was Calvin, who had entered into a plea agreement with the State of Mississippi. Clemons was convicted of capital murder and a sentencing hearing was held. At the sentencing hearing, the State presented evidence arguably establishing that two statutory aggravating factors were present in this case: (1) that the murder was committed during the course of a robbery for pecuniary gain and (2) that it was an “especially heinous, atrocious or cruel” killing. Clemons presented testimony from his mother and a psychologist regarding mitigating evidence. The State argued the “especially heinous” factor extensively and with regard to that factor the trial court instructed the jury in the bare terms of the Mississippi statute. The jury was further instructed several times that it need not sentence Clemons to death even if it found that no mitigating circumstances were present. The jury sentenced Clemons to death, finding that both aggravating factors argued by the State were present and that they outweighed any mitigating circumstances. Clemons appealed his conviction and sentence to the Mississippi Supreme Court, and that court affirmed. 535 So. 2d 1354 (1988). After rejecting Clemons’ arguments regarding guilt and several of his challenges to the sentencing proceeding, the court addressed the validity of the “especially heinous” aggravating factor even though Clemons had never raised the issue. The court began by noting that our decision in Maynard v. Cartwright, supra, had invalidated Oklahoma’s identical “especially heinous, atrocious, or cruel” aggravating circumstance because it was unconstitutionally vague and did not provide sufficient guidance to the jury in deciding whether to impose the death penalty. The court also recognized that we had refused to sustain the death penalty in Maynard, even though valid aggravating circumstances remained, because Oklahoma had no procedure for salvaging death sentences under such circumstances and that we had left the question of the effect of possible constitutional limiting constructions of the “especially heinous” factor to the Oklahoma courts in the first instance. The Mississippi Supreme Court distinguished this case from Maynard and sustained Clemons’ death sentence on the following grounds: (1) in Mississippi there is an established procedure that “when one aggravating circumstance is found to be invalid or unsupported by the evidence, a remaining valid aggravating circumstance will nonetheless support the death penalty verdict,” 535 So. 2d, at 1362 (citing cases); (2) the Mississippi Supreme Court has previously given the “especially heinous” factor a constitutional limiting construction, narrowing that category to murders that are conscienceless or pitiless and unnecessarily torturous to the victim, id., at 1363 (citing Coleman v. State, 378 So. 2d 640, 648 (1979)); and (3) the trial court gave the jury no less than seven instructions that “singly and collectively told the jury that regardless of aggravating circumstances, they were not required to impose the death penalty,” even “if . . . there were no mitigating circumstances.” 535 So. 2d, at 1364 (citing instructions). The court then stated that given all of these considerations plus “the brutal and torturous facts surrounding the murder of Arthur Shorter ... it is inescapable that Maynard v. Cartwright does not dictate the outcome of the case sub ju-' dice.” Ibid. The court added that “[w]e likewise are of the opinion beyond a reasonable doubt that the jury’s verdict would have been the same with or without the ‘especially heinous, atrocious or cruel’ aggravating circumstance.” Ibid. Finally, the court conducted its proportionality review. The court noted that it had reviewed the record and stated that “[i]n our opinion . . . the punishment of death is not too great when the aggravating and mitigating circumstances are weighed against each other . . . .” Id., at 1365. Three justices dissented, arguing that the sentence should be vacated and the case remanded to a jury for resentencing with properly defined aggravating factors. We granted certiorari, 491 U. S. 904 (1989). II. We deal first with petitioner’s submission that it is constitutionally impermissible for an appellate court to uphold a death sentence imposed by a jury that has relied in part on an invalid aggravating circumstance. In Zant v. Stephens, 462 U. S. 862 (1983), we determined that in a State like Georgia, where aggravating circumstances serve only to make a defendant eligible for the death penalty and not to determine the punishment, the invalidation of one aggravating circumstance does not necessarily require an appellate court to vacate a death sentence and remand to a jury. We withheld opinion, however, “concerning the possible significance of a holding that a particular aggravating circumstance is ‘invalid’ under a statutory scheme in which the judge or jury is specifically instructed to weigh statutory aggravating and mitigating circumstances in exercising its discretion whether to impose the death penalty.” Id., at 890. In Mississippi, unlike the Georgia scheme considered in Zant, the finding of aggravating factors is part of the jury’s sentencing determination, and the jury is required to weigh any mitigating factors against the aggravating circumstances. Although these differences complicate the questions raised, we do not believe that they dictate reversal in this case. A Nothing in the Sixth Amendment as construed by our prior decisions indicates that a defendant’s right to a jury trial would be infringed where an appellate court invalidates one of two or more aggravating circumstances found by the jury, but affirms the death sentence after itself finding that the one or more valid remaining aggravating factors outweigh the mitigating evidence. Any argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court. Cabana v. Bullock, 474 U. S. 376 (1986), held that an appellate court can make the findings required by Enmund v. Florida, 458 U. S. 782 (1982), in the first instance and stated that “[t]he decision whether a particular punishment — even the death penalty — is appropriate in any given case is not one that we have ever required to be made by a jury.” 474 U. S., at 385. Spaziano v. Florida, 468 U. S. 447 (1984), ruled that neither the Sixth Amendment, nor the Eighth Amendment, nor any other constitutional provision provides a defendant with the right to have a jury determine the appropriateness of a capital sentence; neither is there a double jeopardy prohibition on a judge’s override of a jury’s recommended sentence. Likewise, the Sixth Amendment does not require that a jury specify the aggravating factors that permit the imposition of capital punishment, Hildwin v. Florida, 490 U. S. 638 (1989), nor does it require jury sentencing, even where the sentence turns on specific findings of fact. McMillan v. Pennsylvania, 477 U. S. 79, 93 (1986). B To avoid the import of these cases, Clemons argues that under Mississippi law only a jury has the authority to impose a death sentence, see Miss. Code Ann. §99-19-101 (Supp. 1989), and that he therefore has a liberty interest under the Due Process Clause of the Fourteenth Amendment in having a jury make all determinations relevant to his sentence. He therefore argues that an appellate court cannot reweigh the balance of factors when the jury has found and relied on an invalid aggravating circumstance. Capital sentencing proceedings must of course satisfy the dictates of the Due Process Clause, Gardner v. Florida, 430 U. S. 349, 358 (1977) (plurality opinion), and we have recognized that when state law creates for a defendant a liberty interest in having a jury make particular findings, speculative appellate, findings will not suffice to protect that entitlement for due .process purposes. Hicks v. Oklahoma, 447 U. S. 343 (1980). However, these two general propositions do not lead to the result Clemons seeks. In Hicks v. Oklahoma, sentence had been imposed under an invalid recidivist statute that provided for a mandatory 40-year sentence. The Oklahoma Court of Criminal Appeals affirmed the sentence because it was within the range of possible sentences the jury validly could have imposed. Hicks claimed, and the State conceded, that in Oklahoma only the jury could impose sentence. We held that under state law Hicks had a liberty interest in having the jury impose punishment, an interest that could not be overcome by the “frail conjecture” that the jury “might” have imposed the same sentence in the absence of the recidivist statute. Id., at 346. We specifically pointed out, however, that the Oklahoma Court of Criminal Appeals did not “purport to cure the deprivation by itself reconsidering the appropriateness” of the 40-year sentence, id., at 347 (footnote omitted), thus suggesting that appellate sentencing, if properly conducted, would not violate due process of law. Contrary to the situation in Hicks, the state court in this case, as it had in others, asserted its authority under Mississippi law to decide for itself whether the death sentence was to be affirmed even though one of the two aggravating circumstances on which the jury had relied should not have been, or was improperly, presented to the jury. The court did not consider itself bound in such circumstances to vacate the death sentence and to remand for a new sentencing proceeding before a jury. We have no basis for disputing this interpretation of state law, which was considered by the court below to be distinct from its asserted authority to ¡affirm the sentence on the ground of harmless error, and which plainly means that we must reject Clemons’ assertion that he had an unqualified liberty interest under the Due Process Clause td have the jury assess the consequence of the invalidation of one of the aggravating circumstances on which it had been instructed. In this respect, the case is analogous to Cabana v. Bullock, supra, where we specifically rejected a due process challenge based on Hicks because state law created no entitlement to have a jury make findings that an appellate court also could make. 474 U. S., at 387, and n. 4. c Clemons also submits that appellate courts are unable to fully consider and give effect to the mitigating evidence presented by defendants at the sentencing phase in a capital case and that it therefore violates the Eighth Amendment for an appellate court to undertake to reweigh aggravating and mitigating circumstances in an attempt to salvage the death sentence imposed by a jury. He insists, therefore, that he is entitled to a new sentencing hearing before a jury and that the decision below must be reversed. We are unpersuaded, however, that our cases require this result. Indeed, they point in the opposite direction. The primary concern in the Eighth Amendment context has been that the sentencing decision be based on the facts and circumstances of the defendant, his background, and his crime. See, e. g., Spaziano v. Florida, supra, at 460; Zant v. Stephens, 462 U. S., at 879; Eddings v. Oklahoma, 455 U. S. 104, 110-112 (1982); Lockett v. Ohio, 438 U. S. 586, 601-605 (1978) (plurality opinion); Gregg v. Georgia, 428 U. S. 153, 197 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). In scrutinizing death penalty procedures under the Eighth Amendment, the Court has emphasized the “twin objectives” of “measured consistent application and fairness to the accused.” Eddings, supra, at 110-111. See also Lockett, supra, at 604 (emphasizing the importance of reliability). Nothing inherent in the process of appellate reweighing is inconsistent with the pursuit of the foregoing objectives. We see no reason to believe that careful appellate weighing of aggravating against mitigating circumstances in cases such as this would not produce “measured consistent application” of the death penalty or in any way be unfair to the defendant. It is a routine task of appellate courts to decide whether the evidence supports a jury verdict and in capital cases in “weighing” States, to consider whether the evidence is such that the sentencer could have arrived at the death sentence that was imposed. And, as the opinion below indicates, a similar process of weighing aggravating and mitigating evidence is involved in an appellate court’s proportionality review. Furthermore, this Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency. See, e. g., Gregg v. Georgia, supra, at 204-206 (joint opinion of Stewart, Powell, and Stevens, JJ.); Proffitt v. Florida, 428 U. S. 242, 253 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Dobbert v. Florida, 432 U. S. 282, 295-296 (1977); Jurek v. Texas, 428 U. S. 262, 276 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). It is also.important to note that state supreme courts in States authorizing the death penalty may well review many death sentences and that typical jurors, in contrast, will serve on only one such case during their lifetimes. See Proffitt, supra, at 252-253. Therefore, we conclude that state appellate courts can and do give each defendant an individualized and reliable sentencing determination based on the defendant’s circumstances, his background, and the crime. This is surely the import of Cabana v. Bullock, 474 U. S. 376 (1986), which held that a state appellate court could make the finding that Enmund v. Florida, 458 U. S. 782 (1982), required for the imposition of the death penalty, i. e. whether the defendant had killed, attempted to kill, or intended to kill. Wainwright v. Goode, 464 U. S. 78 (1983) (per curiam), is likewise instructive. There, a Florida trial judge relied on an allegedly impermissible aggravating circumstance (“future dangerousness”) in imposing a death sentence on Goode. The Florida Supreme Court conducted an independent review of the record, reweighed the mitigating and aggravating factors, and concluded that the death penalty was warranted. In a federal habeas proceeding, Goode then successfully chailenged the trial court’s reliance on the allegedly impermissible factor. We reversed the grant of the writ and concluded that even if the trial judge relied on a factor not available for his consideration under Florida law, the sentence could stand. “Whatever may have been true of the sentencing judge, there is no claim that in conducting its independent reweighing of the aggravating and mitigating circumstances the Florida Supreme Court considered Goode’s future dangerousness. Consequently there is no sound basis for concluding that the procedures followed by the State produced an arbitrary or freakish sentence forbidden by the Eighth Amendment.” Id., at 86-87. We accordingly see nothing in appellate weighing or reweighing of the aggravating and mitigating circumstances that is at odds with contemporary standards of fairness or that is inherently unreliable and likely to result in arbitrary imposition of the death sentence. Nor are we impressed with the claim that without written jury findings concerning mitigating circumstances, appellate courts cannot perform their proper role. In Spaziano and Proffitt, we upheld the Florida death penalty scheme permitting a trial judge to override a jury’s recommendation of life even though there were no written jury findings. An appellate court also is able adequately to evaluate any evidence relating to mitigating factors without the assistance of written jury findings. Ill Clemons argues that even if appellate reweighing is permissible-, the Mississippi Supreme Court did not actually reweigh the evidence in this case and instead simply held that when an aggravating circumstance relied on by the jury has been invalidated, the sentence may be affirmed as long as there remains at least one valid and undisturbed aggravating circumstance, an approach that requires no weighing whatsoever. The State on the other hand insists that a proper reweighing of aggravating circumstances was undertaken. We find the opinion below unclear with respect to whether the Mississippi Supreme Court did perform a weighing function, either by disregarding entirely the “especially heinous” factor and weighing only the remaining aggravating circumstance against the mitigating evidence, or by including in the balance the “especially heinous” factor as narrowed by its prior decisions and embraced in this case. At one point the court recites the proper limiting construction of the “especially heinous” aggravating factor, 535 So. 2d, at 1363, and at times the court’s opinion seems to indicate that the court was reweighing the mitigating circumstances and both aggravating factors by applying the proper definition to the “especially heinous” factor. For example, at one point the court refers to the “brutal and torturous facts” surrounding Shorter’s murder and elsewhere states that “the punishment of death is not too great when the aggravating and mitigating circumstances are weighed against each other.” Id., at 1364, 1365. At other times, however, the opinion indicates that the court may have been employing the other approach and disregarding the “especially heinous” factor entirely. “[T]his Court (Mississippi) has held and established unequivocally through the years that when one aggravating circumstance is found to be invalid or unsupported by the evidence, a remaining valid aggravating circumstance will nonetheless support the death penalty verdict.” Id., at 1362. In addition, although the latter statement does not necessarily indicate that no reweighing was undertaken, the court’s statement can be read as a rule authorizing or requiring affirmance of a death sentence so long as there remains at least one valid aggravating circumstance. If that is what the Mississippi Supreme Court meant, then it was not conducting appellate reweighing as we understand the concept. An automatic rule of affirmance in a weighing State would be invalid under Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982), for it would not give defendants the individualized treatment that would result from actual reweighing of the mix of mitigating factors and aggravating circumstances. Cf. Barclay v. Florida, 463 U. S. 939, 958 (1983) (plurality opinion). Additionally, because the Mississippi Supreme Court’s opinion is virtually silent with respect to the particulars of the allegedly mitigating evidence presented by Clemons to the jury, we cannot be sure that the court fully heeded our cases emphasizing the importance of the sentencer’s consideration of a defendant’s mitigating evidence. We must, therefore, vacate the judgment below, and remand for further proceedings, insofar as the judgment purported to rely on the State Supreme Court’s reweighing of aggravating and mitigating circumstances. Cf., Cabana v. Bullock, 474 U. S., at 390-392. IV Even if under Mississippi law, the weighing of aggravating and mitigating circumstances were not an appellate, but a jury, function, it was open to the Mississippi Supreme Court to find that the error which occurred during the sentencing proceeding was harmless. See, e. g., Satterwhite v. Texas, 486 U. S. 249 (1988). As the plurality in Barclay v. Florida, supra, opined, the Florida Supreme Court could apply harmless-error analysis when reviewing a death sentence imposed by a trial judge who relied on an aggravating circumstance not available for his consideration under Florida law: “Cases such as [those cited by the petitioner] indicate that the Florida Supreme Court does not apply its harmless-error analysis in an automatic or mechanical fashion, but rather upholds death sentences on the basis of this analysis only when it actually finds that the error is harmless. There is no reason why the Florida Supreme Court cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstances could not possibly affect the balance. . . . What is important... is an individualized determination on the basis of the character of the individual and the circumstances of the crime.’ Zant, [462 U. S.], at 879 (emphasis in original).” Id., at 958. Clemons argues, however, that the Mississippi Supreme Court incorrectly applied the harmless-error rule, that the court acted arbitrarily in applying it to his case when it refused to do so in a similar case, and that the State failed to prove beyond a reasonable doubt that any error was harmless. With regard to harmless error, the Mississippi Supreme Court made only the following statement: ‘We likewise are of the opinion beyond a reasonable doubt that the jury’s verdict would have been the same with or without the ‘especially heinous, atrocious or cruel’ aggravating circumstance.” 535 So. 2d, at 1364. Although the court applied the proper “beyond a reasonable doubt” standard, see Chapman v. California, 386 U. S. 18, 24 (1967), its cryptic holding suggests that it was beyond reasonable doubt that the sentence would have been the same even if there had been no “especially heinous” instruction at all and only the aggravating circumstance that the murder was committed in the course of a robbery for pecuniary gain was to be balanced against the mitigating circumstances. We agree that it would be permissible to approach the harmless-error question in this fashion, but if this is the course the court took, its ultimate conclusion is very difficult to accept. As Clemons points out, the State repeatedly emphasized and argued the “especially heinous” factor during the sentencing hearing. The State placed little emphasis on the “robbery for pecuniary gain” factor. Under these circumstances, it would require a detailed explanation based on the record for us possibly to agree that the error in giving the invalid “especially heinous” instruction was harmless. It is perhaps possible, however, that the Mississippi Supreme Court intended to ask whether beyond reasonable doubt the result would have been the same had the especially heinous aggravating circumstance been properly defined in the jury instructions; and perhaps on this basis it could have determined that the failure to instruct properly was harmless error. Because we cannot be sure which course was followed in Clemons’ case, however, we vacate the judgment insofar as it rested on harmless error and remand for further proceedings. V Nothing in this opinion is intended to convey the impression that state appellate courts are required to or necessarily should engage in reweighing or harmless-error analysis when errors have occurred in a capital sentencing proceeding.Our holding is only that such procedures are constitutionally permissible. In some situations, a state appellate court may conclude that peculiarities in a case make appellate reweighing or harmless-error analysis extremely speculative or impossible. We have previously noted that appellate courts may face certain difficulties in determining sentencing questions in the first instance. See Caldwell v. Mississippi, 472 U. S. 320, 330-331 (1985). Nevertheless, that decision is for state appellate courts, including the Mississippi Supreme Court in this case, to make. VI For the foregoing reasons the judgment of the Mississippi Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered. The court instructed the jury as follows: “Consider only the following elements, if any, of aggravation in determining whether the death penalty should be imposed: ... (2) The Capital offense was especially heinous, atrocious, or cruel.” App. 25. This language is identical to that in Miss. Code Ann. § 99 — 19—101(5)(h) (Supp. 1989), which provides that “[alggravating circumstances shall be limited to the following: . . . (h) The capital offense was especially heinous, atrocious or cruel.” Mississippi Code Ann. § 99-19-101(3)(c) (Supp. 1989) provides that “[f]or the jury to impose a sentence of death, it must unanimously find . . . (c) That there are insufficient mitigating circumstances, as enumerated in subsection (6), to outweigh the aggravating circumstances.” We note also that although Hicks and a due process rationale were argued by the respondent in Zant v. Stephens, 462 U. S. 862 (1983), see Brief for Respondent, O. T. 1982, No. 81-89, pp. 37-38, and by the dissenters in Barclay v. Florida, 463 U. S. 939, 985-986 (1983), the Court implicitly rejected those arguments in both cases by refusing to address them. Along similar lines, in Solem v. Helm, 463 U. S. 277 (1983), the Court concluded that appellate courts are capable of comparing the propriety of different criminal sentences and noted that “[t]he easiest comparison, of course, is between capital punishment and noncapital punishments, for the death penalty is different from other punishments in kind rather than degree.” Id,., at 294 (footnote omitted). We find unpersuasive Clemons’ argument that the Mississippi Supreme Court’s decision to remand to a sentencing jury in Johnson v. State, 511 So. 2d 1333 (1987), rev’d, 486 U. S. 578 (1988), on remand, 547 So. 2d 59 (1989), a case in which this Court reversed the death sentence because it depended in part on a jury finding that the “especially heinous” aggravating factor was present, indicates that the Mississippi Supreme Court acted arbitrarily in refusing to do the same in this case. Johnson is distinguishable because in that case the jury had found both that the defendant had been convicted of a prior violent felony and that the murder was especially heinous, atrocious, or cruel. In fact, the prior conviction the jury relied upon had been vacated and thus the jury was permitted to consider inadmissible evidence in determining the defendant’s sentence. This Court noted in vacating the sentence that the Mississippi Supreme Court’s refusal to rely on harmless-error analysis in upholding the sentence was “plainly justified” because the error “extended beyond the mere invalidation of an aggravating circumstance supported by evidence that was otherwise admissible” and in fact permitted the jury “to consider evidence that [was] revealed to be materially inaccurate.” 486 U. S., at 590. The Court did not hold that the Mississippi Supreme Court could not have applied harmless-error analysis. Given that two aggravating factors had been invalidated and inadmissible evidence had been presented to the jury, it was not unreasonable for the Mississippi Supreme Court to conclude that it could not conduct the harmless-error inquiry or adequately reweigh the mitigating factors and aggravating circumstances in Johnson. By contrast, in this case there is no serious suggestion that the State’s reliance on the “especially heinous” factor led to the introduction of any evidence that was not otherwise admissible in either the guilt or sentencing phases of the proceeding. All of the circumstances surrounding the murder already had been aired during the guilt phase of the trial and a jury clearly is entitled to consider such evidence in imposing sentence. A state appellate court’s decision to conduct harmless-error analysis or to reweigh aggravating and mitigating factors rather than remand to the sentencing jury violates the Constitution only if the decision is made arbitrarily. We cannot say that the Mississippi Supreme Court’s refusal to remand in this case was rendered arbitrary by its decision to remand in Johnson. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Chief Justice Warren delivered the -opinion of the Court. This is another in the long line of cases presenting the question whether a confession was properly admitted into evidence under the Fourteenth' Amendment. As in all such cases, we are forced to resolve a conflict between two fundamental interests of society; its interest in prompt and efficient law enforcement, and’its interest in preventing the rights of its individual members from being abridged by unconstitutional methods of law enforcement. Because of the delicate nature of the- constitutional determination which we must make, we cannot escape' the responsibility of making our own examination of the record. Norris v. Alabama, 294 U. S. 587. The State’s evidence reveals the following: Petitioner Vincent Joseph Spano is a derivative citizen of this country, having been born in Messina, Italy. He was 25 years old at the time of the shooting in question and had graduated from junior high school. He had a record of regular employment. The shooting took place on January 22,1957. On that day, petitioner was drinking in a bar. The decedent, a former professional boxer weighing almost 200 pounds who had fought in Madison Square Garden, took some of petitioner’s money from the bar. Petitioner followed him out of the bar to recover it. A fight ensued, with the decedent knocking petitioner down and then kicking him in the head three or four times. Shock from the force of these blows caused petitioner to vomit. After •the bartender applied some ice to his head, petitioner left the bar, walked to his apartment; secured a gun, and walked eight or nine blocks to a candy store where, the decedent was frequently to be found. He entered the store in which decedent, three friends of decedent, at least two of whom were ex-convicts, and a. boy who was supervising the store were present. He fired five shots, two of which entered the decedent’s body, causing his death. The boy was the only eyewitness; the three friends of decedent did not see the person who.fired the shot. Petitioner then disappeared for the next week or so. On February 1, 1957, the.Bronx County Grand Jury returned an indictment for first-degree murder against petitioner'. Accordingly, a bench warrant was issued for his arrest, commanding that he be forthwith brought beforé the court to answer the indictment, or, if the court had adjourned for the term, that he be delivered into the custody of the Sheriff of Bronx County. .See N. Y. Code. Crim. Proc. § 301. On February 3, 1957, petitioner called one Gaspar Bruno,.a close friend of 8 or 10 years’ standing who had attended school with him. Bruno was a fledgling police officer, having at that time not yet finished attending police academy. According to Bruno’s testimony, petitioner told;him “that he took a terrific beating, that the deceased hurt him real bad and he dropped him a couple of times and he was dazed; he didn’t, know what he was doing and that he went and shot at him.” Petitioner told Bruno.that he intended to get a lawyer and give himself up. Bruno relayed this information to his superiors. The following day, February 4, at 7:10 p. m., petitioner, accompanied by counsel, surrendered himself to the authorities in front of th& Bronx County Building, where both the office of the Assistant District Attorney who ultimately prosecuted, his case and the courtroom in which he was ultimately tried were located. His attorney had cautioned him to answer n» questions, and left him in the custody of the officers. He was promptly taken to the office of the Assistant District Attorney, and at 7:15 p. m. the questioning began, being conducted by Assistant District Attorney Goldsmith, Lt. Gannon, Detectives Farrell, Lehrer and Motta, and Sgt. Clarke. The record reveals that the questioning was both persistent and continuous. Petitioner, in accordance with his attorney’s instructions, steadfastly refused to answer. Detective Motta testified: “He refused to talk to me.”, “He just looked up to the ceiling and refused to talk to me.” Detective Farrell testified: “Q. And you started to interrogate him? “A. That is right. “Q.: What did he say? “A. He said 'you would have to see my attorney. I tell you nothing but my name.’ "Q. Did you continue to examine him? “A. Verbally, yes, sir.” He asked.one officer, Detective Ciccone, if he could speak to his attorney, but that request was denied. Detective Ciccone testified that he could not find the attorney’s name in the telephone book. He was given two sandwiches, coffee and cake at. 11 p. m. At 12:15 a. m. on the morning of February 5, after five hours of questioning in which it became evident that petitioner was following his attorney’s instructions, on the Assistant District Attorney’s orders petitioner was transferred to the 46th Squad, Ryer Avenue Police Station. The Assistant District Attorney also went to the police station and to some extent continued to participate in the interrogation.. Petitioner arrived at 12:30 and questioning was resumed at 12:40. The character of the questioning is revealed by the testimony of Detective Farrell:' “Q. Who did you leave him in the room with? “A. With Detective Lehrer and Sergeant Clarke came in and Mr. Goldsmith came in or Inspector Halk came in. It was back, and forth. People just came in, spoke a few words to the defendant or they listened a few minutes and they left.” But petitioner persisted in his refusal to answer, and again requested permission to see his attorney, this time from Detective Lehrer. His request was again denied. It was then that those in .charge of the investigation decided that petitioner’s close friend, Bruno, could be of use. He had been called out on the case around 10 or 11 p. m., although he was not connected with the 46th Squad or Precinct in any way. Although, in fact, his job was in no way threatened, Bruno was told tó tell petitioner that petitioner’s telephone'call had gotten him “in a lot of trouble,” and that he should seek to extract sympathy from petitioner for Bruno’s pregnant wife and three children. Bruno developed this theme with petitioner without success, and petitioner, also without success, again sought to see his attorney, a request which Bruno relayed unavailingly to his superiors. After this first session with petitioner, Bruno was again directed by Lt. Gannon to play on petitioner’s sympathies, but again no confession was forthcoming. But the Lieutenant a third time ordered Bruno falsely to importune his friend to confess, but again petitioner clung to his attorney’s advice. Inevitably, in the fourth such session directed by the Lieutenant, lasting a full hour, petitioner succumbed to his friend’s prevarications and agreed to make a statement. Accordingly, at 3:25 a. m. the Assistant District Attorney, a stenographer, and several other law enforcement officials entered the room where petitioner was being questioned, and took his statement in question and answer form with the Assistant District Attorney asking the questions. The statement was completed at 4:05 a. m. But this was not the end. At 4:30 a. m. three detectives took petitioner to Police Headquarters in Manhattan. On the way they attempted to find the bridge from which petitioner said he had thrown the murder weapon. They crossed • the Triborough Bridge into Manhattan, arriving at Police Headquarters at 5 a. m., a,nd left Manhattan for the Bronx at 5:40 a. m. via the Willis Avenue Bridge. When petitioner recognized neither bridge as the one from which he had thrown the weapon, they reentered Manhattan via the Third Avenue Bridge, which petitioner stated was the right one, and then returned to the Bronx well after 6 a. m. During that trip the officers also elicited a statement from petitioner that the deceased was'always “on [his] .brick,” “always pushing” him and that he was “not-sorry” he had shot the deceased. All three detectives testified to that, statement at the trial.. Court opened at 10 a. ,m. that morning, and. petitioner was arraigned at. 10:15.. At the trial, the confession was introduced in evidence over appropriate objections. The jury was instructed that it could rely pri it only if it was found to be voluntary. The jury-returned a guilty, verdict arid-petitioner was sentenced to death. The New York Court of Appeals affirmed the conviction over three dissents, 4 N. Y. 2d 256, 173 N Y. S. 2d 793, 150 N. E. 2d 226, and we granted certiorari td resolve the serious problem preserited under the Fourteenth Amendment. 358 U. S. 919. Petitioner’s, first contention is that his absolute right to counsel in a capital case, Powell v. Alabama, 287 U. S. 45, became operative on the return of an indictment against him, for at that time he was in every sense a defendant in a criminal case, the grand jury having found sufficient cause to believe that he had committed thé crime. He argues accordingly that following indictment no confession obtained in the absence of counsel can be used without violating the Fourteenth Amendment. He seeks to distinguish Crooker v. California, 357 U. S. 433, and Cicenia v. Lagay, 357 U. S. 504, on the ground that in those cases no indictment had been returned. We find it unnecessary to reach' that contention, for we find use of the- confession-obtained here inconsistent with the Forirteenth Amendment under traditional principles. The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted -feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be "as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves. Accordingly, the actions of police in obtaining, confessions have come under scrutiny in a long series of cases. Those cases suggest that in recent years law enforcement' officials have become increasingly aware of the burden which they share, along with our courts, in protecting fundamental rights.of our citizenry, including, that portion of our citizenry suspected of crime. The facts of no case recently in this Court have quite approached the brutal beatings in Brown v. Mississippi, 297 U. S. 278 (1936), or the 36 consecutive hours of questioning present in Ashcraft v. Tennessee, 322 U. S. 143 (1944). But as law-enforcement officers become more responsible, and the methods used to extract confessions more sophisticated, our duty to enforce federal constitutional protections does not cease. It only becomes more difficult because of the more delicate judgments to be made. Our judgment here is that, on all the facts, this conviction cannot-stand. Petitioner was a foreign-born young man of 25 with no past history of law violation or of subjection to official interrogation, at least insofar as the record shows. He had progressed only one-half year into high , school and the record indicates that he had a history of emotional instability. He did not make a narrative statement, but was subject to the leading questions of 'a skillful prosecutor in a question and.answer confession. He was subjected to questioning not by a few men, but by many. They included Assistant District Attorney Goldsmith, one Hyland of the District Attorney’s Office, Deputy Inspector Halks, Lieutenant Gannon, Detective Ciccone, Detective Motta, Detective Lehrer, Detective Marshal, Detective- Farrell, Detective Leira, Detective Murphy, •Detective Murtha, Sergeant Clarke, Patrolman Bruno and Stenographer Baldwin. All played some part, and the effect of such massive official interrogation must have been felt. Petitioner was questioned for virtually eight straight hours before he confessed, with his only respite being a transfer to-an arena presumably considered more appropriate by the police for the task at hand. Nor was the questioning conducted during normal business hours, but began in early evening, continued into the night, and did not bear- fruition until the not-too-early morning. ■ The drama was not played out, with the final admissions obtained, until almost sunrise.' In such cir-. cumstances .slowly mounting fatigue does, and is calculated to, play its part. The questioners persisted in the face of his repeated refusals to answer on the advice of his attorney, and they ignored his reasonable requests to contact the local attorney whom he had already retained and who had personally delivered him into the custody of these officers in obedience to the bench warrant.' The use of Bruno, characterized-in this Court by counsel for the State as a “childhood, friend” of petitioner’s, is another factor which deserves mention in the totality of the situation. Bruno’s was the one face visible to • petitioner in which' he could put some trust. There was a bond of friendship between them going back a decade into adolescence. It was with this material that the officers felt that they could overcome petitioner’s will. They instructed Bruno falsely to state that petitioner’s telephone call had gotten him into trouble, that his job was in jeopardy, and that loss of his job would be disastrous to his three children, his wife and his unborn child. And Bruno played this part of a worried father, harried by his superiors, in not one, but four different acts', the final one lasting an hour. Cf. Leyra v. Denno, 347 U. S. 556. Petitioner was apparently unaware of John Gay’s famous couplet: “An open foe may prove a curse, But a pretended friend is worse,” and he yielded to his false friend’s entreaties. .We conclude that petitioner’s will was overborne by official pressure, fatigue and sympathy falsely aroused, after considering all the facts in their post-indictment setting. Here a grand jury had already found sufficient cause to require petitioner to face trial on a charge of first-degree murder, and the' police had an eyewitness to the shooting. The police were not therefore merely trying to solve a crime, or even to absolve a suspect. Compare Crooker v. California, supra, and Cicenia v. Lagay, supra. They were rather concerned primarily with securing a statement from defendant On which they coiild convict him. The undeviating intent of the officers to extract a confession from petitioner is therefore patent. .When such an intent is shown, this Court has held that the confession obtained must be examined with the most careful scrutiny, and has reversed a.conviction on facts less compelling than these. Malinski v. New York, 324 U. S. 401. Accordingly, we hold that petitioner’s conviction cannot stand under the Fourteenth Amendment. The State suggests, however, that we are not free to reverse this conviction, since there is sufficient other evidence in the record, from which the jury might have found guilt, relying on Stein v. New York, 346 U. S. 156. But Payne v. Arkansas, 356 U. S. 560, 568, authoritatively establishes that Stein did not hold that a conviction may be sustained on the basis of other evidence if a confession found to be involuntary by this Court was used, even though limiting instructions were given. Stein held only that when a confession is not found by this Court to be involuntary, this .Court will not reverse on the ground that the jury might have found it involuntary and might have relied on it. The judgment must be . Reversed. How this could be So when the attorney’s name, Tobias Russo, was concededly in the telephone book does not appear. The trial judge sustained objections by the Assistant District Attorney to questions.designed tó delve into this mystery. E. g., Cicenia v. Lagay, 357 U. S. 504; Crooker v. California, 357 U. S. 433; Ashdown v. Utah, 357 U. S. 426; Payne v. Arkansas, 356 U. S. 560; Thomas v. Arizona, 356 U. S. 390; Fikes v. Alabama, 352 U. S. 191; Leyra v. Denno, 347 U. S. 556; Stein v. New York, 346 U. S. 156; Brown v. Allen, 344 U. S. 443; Stroble v. California, 343 U. S. 181; Gallegos v. Nebraska, 342 U. S. 55; Johnson v. Pennsylvania, 340 U. S. 881; Harris v. South Carolina, 338 U. S. 68; Turner v. Pennsylvania, 338 U. S. 62; Watts v. Indiana, 338 U. S. 49; Lee v. Mississippi, 332 U. S. 742; Haley v. Ohio, 332 U. S. 596; Malinski v. New York, 324 U. S. 401; Lyons v. Oklahoma, 322 U. S. 596; Ashcraft v. Tennessee, 322 U. S. 143; Ward v. Texas, 316 U. S. 547; Lisenba v. California, 314 U. S. 219; Vernon v. Alabama, 313 U. S. 547; Lomax v. Texas, 313 U. S. 544; White v. Texas, 310 U. S. 530; Canty v. Alabama, 309 U. S. 629; Chambers v. Florida, 309 U. S. 227; Brown v. Mississippi, 297 U. S. 278. Medical reports from New York City’s Fordham Hospital introduced by defendant showed that he had suffered a cerebral concussion in 1955. He was described by a private physician in 1951 as “an extremely nervous tense individual who is emotionally unstable and maladjusted,” and was found’ unacceptable for military ’service in 1951, primarily because of “Psychiatric disorder.” He failed the Atmy’s AFQT-1 intelligence test’. His mother had been in mental hospitals on three separate occasions.' His mame'is sometimes spelled “Hawks.” Although each- is referred to separately in the record, it may be -that Detectives Lehrer and Leira are the same person. Lisenba v. California, 314 U. S. 219, is not to the contrary. There, while petitioner had already been arraigned on an incest charge, his later questioning .and confession concerned a murder. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. The motion of petitioner for leave to proceed informa pau-peris and the petition for a writ of certiorari are granted. In state criminal trials, the Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U. S. 358, 364 (1970); see also Jackson v. Virginia, 443 U. S. 307, 315-316 (1979). This reasonable-doubt standard “plays a vital role in the American scheme of criminal procedure.” Winship, 397 U. S., at 363. Among other things, “[i]t is a prime instrument for reducing the risk of convictions resting on factual error.” Ibid. The issue before us is whether the reasonable doubt instruction in this case complied with Winship. Petitioner was convicted in a Louisiana trial court of first-degree murder and was sentenced to death. He appealed to the Supreme Court of Louisiana, arguing, inter alia, that the reasonable-doubt instruction used in the guilt phase of his trial was constitutionally defective. The instruction provided in relevant part: “If you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, it is your duty to give him the benefit of that doubt and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilt, if it does not establish such guilt beyond a reasonable doubt, you must acquit the accused. This doubt, however, must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.” 554 So. 2d 39, 41 (La. 1989) (emphasis added). The Supreme Court of Louisiana rejected petitioner’s argument. The court first observed that the use of the phrases “grave uncertainty” and “moral certainty” in the instruction, “if taken out of context, might overstate the requisite degree of uncertainty and confuse the jury. ” Ibid. But “taking the charge as a whole,” the court concluded that “reasonable persons of ordinary intelligence would understand the definition of ‘reasonable doubt.’” Ibid. It is our view, however, that the instruction at issue was contrary to the “beyond a reasonable doubt” requirement articulated in Winship. In construing the instruction, we consider how reasonable jurors could have understood the charge as a whole. Francis v. Franklin, 471 U. S. 307, 316 (1985). The charge did at one point instruct that to convict, guilt must be found beyond a reasonable doubt; but it then equated a reasonable doubt with a “grave uncertainty” and an “actual substantial doubt,” and stated that what was required was a “moral certainty” that the defendant was guilty. It is plain to us that the words “substantial” and “grave,” as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable-doubt standard. When those statements are then considered with the reference to “moral certainty,” rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause. Accordingly, the judgment of the Supreme Court of Louisiana is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Similar attempts to define reasonable doubt have been widely criticized by the Federal Courts of Appeals. See, e. g., Monk v. Zelez, 901 F. 2d 885, 889-890 (CA10 1990); United States v. Moss, 756 F. 2d 329, 333 (CA4 1985); United States v. Indorato, 628 F. 2d 711, 720-721 (CA1 1980); United States v. Byrd, 352 F. 2d 570, 575 (CA2 1965); see also Taylor v. Kentucky, 436 U. S. 478, 488 (1978). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Stevens delivered the opinion of the Court. The question presented concerns the meaning of the word “willful” as used in the statute of limitations applicable to civil actions to enforce the Fair Labor Standards Act (FLSA). The statute provides that such actions must be commenced within two years “except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.” 61 Stat. 88, 29 U. S. C. § 255(a). I Respondent, a manufacturer of shoes and boots, employed seven mechanics to maintain and repair its equipment. In 1984, the Secretary of Labor (Secretary) filed a complaint alleging that “in many work weeks” respondent had failed to pay those employees the overtime compensation required by the FLSA. As an affirmative defense, respondent pleaded the 2-year statute of limitations. The District Court found, however, that the 3-year exception applied because respondent’s violations were willful, and entered judgment requiring respondent to pay a total of $11,084.26, plus interest, to the seven employees. Donovan v. Richland Shoe Co., 623 F. Supp. 667 (ED Pa. 1985). In resolving the question of willfulness, the District Court followed Fifth Circuit decisions that had developed the so-called Jiffy June standard. The District Court explained: “The Fifth Circuit has held that an action is willful when ‘there is substantial evidence in the record to support a finding that the employer knew or suspected that his actions might violate the FLSA. Stated most simply, we think the test should be: Did the employer know the FLSA was in the picture?’ Coleman v. Jiffy June Farms, Inc., 458 F. 2d 1139, 1142 (5th Cir.)[, cert. denied, 409 U. S. 948 (1972)]. “This standard requires nothing more than that the employer has an awareness of the possible application of the FLSA. Id.; Castillo v. Givens, 704 F. 2d 181, 193 (5th Cir.)[, cert. denied, 464 U. S. 850 (1983)]. ‘An employer acts willfully and subjects himself to the three year liability if he knows, or has reason to know, that his conduct is governed by the FLSA.’ Brennan v. Heard, 491 F. 2d 1, 3 (5th Cir. 1974) (emphasis in original). See also Donovan v. Sabine Irrigation Co., Inc., 695 F. 2d 190, 196 (5th Cir.)[, cert. denied, 463 U. S. 1207 (1983)].” 623 F. Supp., at 670-671. On appeal respondent persuaded the Court of Appeals for the Third Circuit “that the Jiffy June standard is wrong because it is contrary to the plain meaning of the FLSA.” Brock v. Richland Shoe Co., 799 F. 2d 80, 82 (1986). Adopting the same test that we employed in Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 125-130 (1985), the Court of Appeals held that respondent had not committed a willful violation unless “it knew or showed reckless disregard for the matter of whether its conduct was prohibited by the FLSA.” 799 F. 2d, at 83 (emphasis in original). Accordingly, it vacated the District Court’s judgment and remanded the case for reconsideration under the proper standard. The Secretary filed a petition for certiorari asking us to resolve the post -Thurston conflict among the Circuits concerning the meaning of the word “willful” in this statute. The petition noted that the statute applies not only to actions to enforce the overtime and recordkeeping provisions of the FLSA, but also to the Equal Pay Act, the Davis-Bacon Act, the Walsh-Healey Act, and the Age Discrimination in Employment Act (ADEA). Somewhat surprisingly, the petition did not endorse the Jiffy June standard that the Secretary had relied on in the District Court and the Court of Appeals, but instead invited us to adopt an intermediate standard. We granted certiorari, 484 U. S. 813 (1987), and now affirm. II Because no limitations period was provided in the original 1938 enactment of the FLSA, civil actions brought thereunder were governed by state statutes of limitations. In the Portal-to-Portal Act of 1947, 61 Stat. 84, 29 U. S. C. §§216, 251-262, however, as part of its response to this Court’s expansive reading of the FLSA, Congress enacted the 2-year statute to place a limit on employers’ exposure to unanticipated contingent liabilities. As originally enacted, the 2-year limitations period drew no distinction between willful and nonwillful violations. In 1965, the Secretary proposed a number of amendments to expand the coverage of the FLSA, including a proposal to replace the 2-year statute of limitations with a 3-year statute. The proposal was not adopted, but in 1966, for reasons that are not explained in the legislative history, Congress enacted the 3-year exception for willful violations. The fact that Congress did not simply extend the limitations period to three years, but instead adopted a two-tiered statute of limitations, makes it obvious that Congress intended to draw a significant distinction between ordinary violations and willful violations. It is equally obvious to us that the Jiffy June standard of willfulness — a standard that merely requires that an employer knew that the FLSA “was in the picture” — virtually obliterates any distinction between willful and nonwillful violations. As we said in Trans World Airlines, Inc. v. Thurston, 469 U. S., at 128, “it would be virtually impossible for an employer to show that he was unaware of the Act and its potential applicability.” Under the Jiffy June standard, the normal 2-year statute of limitations would seem to apply only to ignorant employers, surely not a state of affairs intended by Congress. In common usage the word “willful” is considered synonymous with such words as “voluntary,” “deliberate,” and “intentional.” See Roget’s International Thesaurus §622.7, p. 479; §653.9, p. 501 (4th ed. 1977). The word “willful” is widely used in the law, and, although it has not by any means been given a perfectly consistent interpretation, it is generally understood to refer to conduct that is not merely negligent. The standard of willfulness that was adopted in Thurston — that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute — is surely a fair reading of the plain language of the Act. The strongest argument supporting the Jiffy June standard is that it was widely used for a number of years. The standard was not, however, consistently followed in all Circuits. In view of the fact that even the Secretary now shares our opinion that it is not supported by the plain language of the statute, we readily reject it. We also reject the intermediate alternative espoused by the Secretary for the first time in this Court. Relying on the opinion of the Court of Appeals for the District of Columbia Circuit in Laffey v. Northwest Airlines, Inc., 185 U. S. App. D. C. 322, 352-354, 567 F. 2d 429, 461-462 (1976), cert. denied, 434 U. S. 1086 (1978), she argues that we should announce a two-step standard that would deem an FLSA violation willful “if the employer, recognizing it might be covered by the FLSA, acted without a reasonable basis for believing that it was complying with the statute. ” Brief for Petitioner 41. This proposal differs from Jiffy June because it would apparently make the issue in most cases turn on whether the employer sought legal advice concerning its pay practices. It would, however, permit a finding of willfulness to be based on nothing more than negligence, or, perhaps, on a completely good-faith but incorrect assumption that a pay plan complied with the FLSA in all respects. We believe the Secretary’s new proposal, like the discredited Jiffy June standard, fails to give effect to the plain language of the statute of limitations. Ordinary violations of the FLSA are subject to the general 2-year statute of limitations. To obtain the benefit of the 3-year exception, the Secretary must prove that the employer’s conduct was willful as that term is defined in both Thurston and this opinion. The judgment of the Court of Appeals is Affirmed. Compare Russo v. Trifari, Krussman & Fishel, Inc., 837 F. 2d 40, 45 (CA2 1988) (applying Thurston standard); Peters v. Shreveport, 818 F. 2d 1148, 1167-1168 (CA5 1987) (overruling Jiffy June, applying Thurston), cert. dism’d, 485 U. S. 930 (1988); and Walton v. United Consumers Club, Inc., 786 F. 2d 303, 308-311 (CA7 1986) (applying Thurston), with Brock v. Shirk, 833 F. 2d 1326, 1329 (CA9 1987) (adhering to Jiffy June); Crenshaw v. Quarles Drilling Corp., 798 F. 2d 1345, 1349-1350 (CA10 1986) (adhering to Jiffy June); Donovan v. Bel-Loc Diner, Inc., 780 F. 2d 1113, 1117 (CA4 1985) (adhering to Jiffy June); Secretary of Labor v. Daylight Dairy Products, Inc., 779 F. 2d 784, 789 (CA1 1985) (adhering to Jiffy June); and Brock v. Georgia Southwestern College, 765 F. 2d 1026, 1038-1039 (CA11 1985) (adhering to Jiffy June; no mention of Thurston). See 52 Stat. 1062, as amended, 29 U. S. C. § 206(d)(3). 46 Stat. 1494, as amended, 40 U. S. C. § 276(a) et seq. 49 Stat. 2036, as amended, 41 U. S. C. §35 et seq. (1982 ed. and Supp. IV). See 81 Stat. 604, as amended, 29 U. S. C. § 626(e)(1). See Lorillard v. Pons, 434 U. S. 575, 581, n. 8 (1978). The Portal-to-Portal Act also made the award of liquidated damages discretionary rather than mandatory and authorized exemptions for certain types of wage plans. In this case, respondent contended that one of those exemptions — the exemption for “Belo” plans, see 29 U. S. C. § 207(f) — was applicable. Petitioner directs us to a memorandum placed in the Congressional Record by Senator Taft during a 1974 debate over amendments to the FLSA that did not alter the language at issue here. See Brief for Petitioner 32. The memorandum described the Jiffy June standard as the then-prevailing interpretation of § 255(a). See 120 Cong. Rec. 4710 (1974). Petitioner concludes that “[notwithstanding that explicit focus on the judicial construction of willfulness, Congress amended Section 255 without addressing the ‘willful violation’ standard of Section 255(a).” Brief for Petitioner 33. This passing reference to the then-prevailing standard is too slender a reed, we think, to support the inference petitioner would have us draw, namely, that Congress approved the Jiffy June standard in enacting the 1974 amendments by mentioning it as the current interpretation and failing to amend that reading. The ease with which the Jiffy June standard can be met is exemplified in this case. As the District Court wrote: “[T]he vice president and general manager of the defendant was aware that the FLSA existed and that it governed overtime systems such as that used for the Richland mechanics. . .« Thus, although Isenberg did not state that he thought that the system used was contrary to the provisions of the FLSA, he did state that he knew that the FLSA applied. I believe that this admission is sufficient to satisfy the liberal willfulness requirement of the FLSA.” Donovan v. Richland Shoe Co., 623 F. Supp. 667, 671 (ED Pa. 1985). See, e. g., Coleman v. Jiffy June Farms, Inc., 458 F. 2d 1139, 1142 (CA5 1971), cert. denied, 409 U. S. 948 (1972); Brennan v. Heard, 491 F. 2d 1, 3 (CA5 1974); Marshall v. Union Pacific Motor Freight Co., 650 F. 2d 1085, 1091-1093 (CA9 1981); Marshall v. Erin Food Services, Inc., 672 F. 2d 229, 231 (CA1 1982); Donovan v. Carls Drug Co., Inc., 703 F. 2d 650, 652-653 (CA2 1983); EEOC v. Central Kansas Medical Center, 705 F. 2d 1270, 1274-1275 (CA10 1983). See, e. g., Hodgson v. Cactus Craft of Arizona, 481 F. 2d 464, 467 (CA9 1973) (willful violation after two prior warnings and unkept promises of compliance); Laffey v. Northwest Airlines, Inc., 186 U. S. App. D. C. 322, 352-355, 567 F. 2d 429, 459-462 (1976) (intermediate standard; see text following this footnote), cert. denied, 434 U. S. 1086 (1978); Donovan v. KFC National Management Co., 682 F. 2d 603, 605 (CA6 1982) (voluntary conduct that employer knows might violate Act is willful). The Secretary’s present opinion of the Jiffy June standard is expressed in her brief: “As this Court found in Thurston (469 U. S. at 128), the ‘in the picture’ standard seems to give too little effect to Congress’s express intent to create two tiers of liability in the FLSA limitations provision. Among employers eventually found to have violated the FLSA, it would seem that there are not many who did not know that the Act was ‘in the picture.’ It may be ‘virtually impossible for an employer to show that he was unaware of the Act and its potential applicability’ (ibid.). In addition, the Jiffy June standard would impose a third year of liability even on those employers who firmly and reasonably (albeit wrongly) believe that their pay practices are lawful, a result that seems counter to the concerns expressed in the legislative process during the 89th Congress.” Brief for Petitioner 39-40 (footnote omitted). We recognize that there is some language in Trans World Airlines v. Thurston, 469 U. S. 111 (1985), not necessary to our holding, that would seem to permit a finding of unreasonableness to suffice as proof of knowing or reckless disregard, and thus that would render petitioner’s standard an appropriate statement of the law. See id., at 126. Our decision today should clarify this point: If an employer acts reasonably in determining its legal obligation, its action cannot be deemed willful under either petitioner’s test or under the standard we set forth. If an employer acts unreasonably, but not recklessly, in determining its legal obligation, then, although its action would be considered willful under petitioner’s test, it should not be so considered under Thurston or the identical standard we approve today. Of course, we express no view as to whether, under the proper standard, respondent’s violation was “willful.” That determination is for the District Court to make on remand from the Court of Appeals. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

G

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Marshall delivered the opinion of the Court. At issue in this case is the propriety of an award of summary judgment in favor of respondent Cities Service in a treble-damage antitrust action. The District Court held there was no genuine issue as to material facts between the parties and that respondent was entitled to judgment as a matter of law. 38 F. R. D. 170 (D. C. S. D. N. Y. 1965). The Court of Appeals for the Second Circuit affirmed. 361 F. 2d 671 (1966). This Court granted certiorari, 385 U. S. 1024 (1967), to determine whether the decisions below were in conformity with Poller v. Columbia Broadcasting System, Inc., 368 U. S. 464 (1962). We conclude that Poller and other decisions of this Court were correctly applied and, accordingly, we affirm. Because the question whether summary judgment is appropriate in any case is one to be decided upon the particular facts of that case, we shall set forth the background of this litigation in some detail (Part I) before turning to the specific issues petitioner raises (Parts II-V). I. On June 11, 1956, petitioner Waldron filed a private antitrust complaint in the Southern District of New York against seven large oil companies: British Petroleum Co., Ltd. (formerly Anglo-Iranian Oil Co.), Gulf Oil Corp., Socony Mobil Oil Co., Standard Oil Co. of California, Standard Oil Co. of New Jersey, The Texas Co., and Cities Service Co. The complaint contained essentially two series of allegations. The first was copied from the complaint in a then-pending civil action by the United States against those defendants other than Cities Service, alleging the formation and maintenance by them of a worldwide oil cartel since 1928. The second series of allegations dealt specifically with a conspiracy claimed to have been entered into at the time of the nationalization of the properties of the Anglo-Iranian Oil Co. by the Government of Iran in May 1951. The defendants other than Cities Service, it was asserted, agreed at that time to boycott Iranian oil in all world markets until Iran should agree to return Anglo-Iranian’s property and concession rights. While the dispute between Anglo-Iranian and the Iranian Government under Premier Mossadegh was still continuing, Waldron and some of his associates allegedly succeeded in obtaining a contract to purchase 15,000,000 metric tons of crude oil or refined products from the National Iranian Oil Co. (NIOC), the company formed to take over Anglo-Iranian’s nationalized properties, over a five-year period at a rate substantially less than the then current posted price for Persian Gulf oil. NIOC in return agreed not to deal with anybody other than Waldron in the United States market. The complaint next stated that the defendants other than Cities Service conspired to prevent petitioner from selling any of the oil to which he was entitled under his contract with NIOC. It was further alleged that Cities Service, after first engaging in extensive negotiations with Waldron with an eye toward participating in the operation of the Iranian oil industry, broke off dealing and joined the conspiracy to boycott him as a result of having received what amounted to a bribe from Gulf and Anglo-Iranian, namely, a large supply of oil from Kuwait at a price even lower than that petitioner could offer Cities pursuant to his contract with NIOC. Finally, the defendants were alleged to have entered into a Consortium Agreement in 1954, pursuant to their attempt to monopolize Middle East oil production, which parceled out substantially all the Iranian oil production between them. Cities Service was claimed to have been permitted to purchase a share in the Consortium. Petitioner asserted that the boycott conspiracy carried out by all the defendants completely frustrated his ability to sell oil under his contract and accordingly sought treble damages from them in the amount of $109,000,000. Within the time set for the defendants to answer the complaint, various of them moved to take petitioner’s deposition, and all of them moved to postpone the filing of their answers until the completion of that deposition. The motions were accompanied by affidavits of counsel that the legal questions presented by the complaint were extraordinarily complex and that they had insufficient information about petitioner’s business dealings with the Iranian Government to permit them adequately to prepare their clients’ answers within the 20-day time limit set by Rule 12 (a) of the Federal Rules of Civil Procedure. These motions were granted by Judge Weinfeld, who, in addition, stayed petitioner from any discovery of his own until completion of the defendants’ discovery, apparently pursuant to then existing practice in the Southern District. The deposition of Waldron commenced on September 10, 1956, and continued until July 3, 1957, at which time petitioner’s counsel announced his intention to limit further examination. Nothing further was done by any party until December 30, 1957, at which time a motion was made to terminate the taking of Waldron’s deposition. By this time 62 days’ testimony had been taken over a period of more than 15 months. All adjournments up to this point were either at Waldron’s request or with his consent. Meanwhile, various of the defendants had noticed the depositions of petitioner’s associates, Richard S. Nelson, James A. Bentley, James E. Zoes, Ray Carter, and Addison Brown, in October and November 1956. Pursuant to successive stipulations entered into between petitioner and the defendants, the taking of these depositions had been postponed up to the date of petitioner’s motion to terminate the taking of his own deposition. In that motion petitioner also moved to vacate the notices to take depositions of his associates. In response to petitioner’s claims that the protracted examination of him by the defendants constituted harassment and an undue burden on him, the defendants pointed out that only one of their number had as yet examined Waldron and that the length of time over which the examination had proceeded had been with his complete acquiescence. As for petitioner’s financial hardship contention, the defendants suggested that, in view of the damages sought by petitioner, it was not inappropriate that he be required to spend considerable time clarifying his claims before trial. Judge Herlands denied the motion on February 11, 1958, after argument; he ordered, however, that further examination of the petitioner by the seven defendants be limited to 52 working days, of which 10 were allotted to respondent Cities Service. In addition 174% days were scheduled for the examination of Waldron’s five associates, of which 31 went to Cities Service. The examinations were to be consecutive and were set to commence on March 10, 1958, unless the parties agreed otherwise. The defendants were authorized to postpone the filing of their answers until 30 days after the completion of the depositions, and petitioner was stayed from undertaking any discovery proceedings of his own during that period. Pursuant to stipulation the continued examination of petitioner did not resume until September 15, 1958, and was not terminated until October 1959. Twenty-six days were spent deposing Waldron in the latter part of 1958 and only six days during all of 1959, of which 3% were utilized by counsel for Cities Service. Petitioner’s associates were deposed between January 1960 and April 1962 for 58 working days, of which 3% were used by counsel for Cities Service. Waldron was then examined for one additional day in 1962. Thus, between September 1956 and May 1962, a period of over 5% years, Waldron and his associates were deposed for a total of 153 days, of which only seven days were attributable to Cities Service. The various stipulations that resulted in prolonging the period required for the taking of these depositions were all entered into either at the request, or with the agreement, of petitioner. During the course of his deposition by Cities Service, Waldron stated that he had at first not attributed Cities’ failure to conclude some sort of a deal with him for Iranian oil to its participation in the boycott. He explained that it was his discovery of Cities’ purchase of substantial amounts of Kuwait oil from Gulf, plus its subsequent participation in the 1954 Consortium, that prompted him to join it in his complaint as a member of the conspiracy. Accordingly, when Cities moved for summary judgment in its favor in 1960, it did so on the ground that the affidavit of Cities’ Senior Vice President in Charge of Foreign Operations, George H. Hill, and the accompanying documents from Cities’ files that were submitted in support of the- motion conclusively disproved petitioner’s theory that it had joined the alleged boycott conspiracy because it had been bought off by the other conspirators. In brief, the documents demonstrated that Cities had been engaged in negotiations with Gulf to purchase Kuwait crude oil since 1948, and that a substantially final agreement, although not the actual conclusion of a contract, had been reached on the proposed deal prior to the time petitioner first approached Cities. As for the Consortium, the documents showed that Cities had only-commenced negotiations with the defendants to obtain participation therein some two years after it was alleged to have joined the conspiracy and that the share it was eventually offered, over its strenuous objections, was so small that it transferred the share to the Richfield Oil Co., in which it held a minority stock interest. In reply to Cities’ motion, petitioner’s counsel reiterated his contention that the course of dealings between Waldron and his associates, on the one hand, and various of Cities’ executive personnel, especially its president, W. Alton Jones, on the other, raised an inference of conspiracy because the most probable conclusion to be drawn from Cities’ decision to pass up the assert-edly extremely beneficial deal proposed by petitioner, notwithstanding its need for additional supplies of imported oil, was that in some manner Cities either had been “reached” or had used its negotiations with Wal-dron as a means of forcing its way into the alleged Middle East oil cartel. Petitioner also suggested that Cities might well have made some sort of informal agreement with the other defendants concerning the Consortium that was not revealed by the documents and that Cities might have expected, at the time such an agreement was made, a more profitable share therein than it was eventually offered. In response to these arguments, Judge Herlands, who had by this time been assigned to the case for all purposes, handed down a memorandum decision on March 30, 1961, postponing determination of Cities’ motion for summary judgment. In his opinion Judge Herlands stated that it was “doubtful” whether any issue as to any material fact existed and that Cities had been named a defendant on mere “suspicion.” Because he judged petitioner’s claim against Cities “so insubstantial,” he ruled that petitioner would not be given “carte blanche authority to conduct untrammeled pre-trial proceedings,” but that such proceedings would be “closely regulated.” Subsequently, Judge Herlands entered an order providing that petitioner was to be allowed to take the deposition of Hill, the Cities’ executive who had been in charge of negotiating the Kuwait deal with Gulf and who had also carried out Cities’ attempts to secure a participation in the Consortium. At the hearing in 1961 on the proposed order to implement the court’s decision, counsel for Waldron asked to depose Cities’ president Jones first. Contrary to what appears to be the position taken now, petitioner acknowledged and accepted Judge Herlands’ order that his discovery of Cities was to be carried out pursuant to Rule 56 (f), Fed. Rules Civ. Proc., which provides for comparatively limited discovery for the purpose of showing facts sufficient to withstand a summary judgment motion, rather than Rule 26, which provides for broad pretrial discovery. Petitioner’s sole objection to the proposed order was that Jones should be deposed rather than Hill. In response to Judge Herlands’ observation that Hill was the man who was in the best position to provide information about the two alleged facts relied on in the complaint to link Cities to the conspiracy, petitioner’s counsel for the first time argued that the Kuwait deal and the Consortium agreement were not crucial to the case. While maintaining the position that those two items were significant, counsel stated that Cities’ motive for entering the alleged conspiracy was basically irrelevant. He argued that the evidence showed that Cities had embarked on a course of dealing with Waldron and then inexplicably had broken it off, and that this sequence of events was in itself sufficient evidence of conspiracy to withstand summary judgment and to entitle petitioner to sufficient discovery to ascertain the reason for the breakoff. This argument was rejected and the trial judge clearly stated that to withstand summary judgment petitioner would have to produce some factual evidence of conspiracy beyond Cities’ mere failure to carry through on a deal for Iranian oil. The taking of Hill’s deposition was scheduled, without objection by petitioner, to commence upon the completion of the depositions of petitioner’s associates. More than a year then elapsed, during which time, again pursuant to stipulations between all the parties, only 25 days were spent taking the depositions of petitioner’s associates. Immediately after the completion of these depositions, in response to motions to strike portions of the complaint made by various defendants other than Cities, petitioner announced his intention to amend his complaint and entered into a stipulation with the other parties extending their time to move or answer until 30 days after service on them of the amended complaint. This stipulation was entered into on June 1, 1962, approximately 30 days prior to the time by which, under Judge Herlands’ previous order, the defendants would have been. required to answer the complaint or move for summary judgment. Some five weeks later, at the request of petitioner’s counsel, a new stipulation was entered into postponing the taking of Hill’s deposition until September 10, 1962, and staying petitioner’s undertaking to file an amended complaint pending completion of the Hill deposition. Between September 10, 1962, and February 27, 1963, pursuant to stipulations between the parties, petitioner deposed Mr. Hill for a total of six working days. Then, at the beginning of May, petitioner moved for additional discovery. In response to this motion respondent Cities Service renewed its summary judgment motion in addition to opposing further discovery by petitioner. At oral argument on May 27, 1963, Judge Herlands reiterated his opinion that thus far Waldron was still unable to point to any facts tending to show that Cities had participated in the alleged conspiracy. Indeed, the deposition testimony of Hill, plus various additional documentary evidence supplied in connection therewith, had further disproved the Kuwait and Consortium payoff theories. This evidence showed that Cities had actively resisted formation of the Consortium by the other defendants, even to the extent of making approaches to the United States Government in the hope of securing its intervention in the situation. While the respective motions were pending before Judge Herlands, petitioner on June 28, 1963, filed an amended complaint. It differed from the original complaint in that most of the specific facts alleged in the original were replaced by more general allegations of conspiracy and boycott. In regard to Cities, the complaint was amended to omit all reference to any factual allegations involving either Kuwait oil or membership in the 1954 Consortium. In addition, those allegations of the original complaint which were directed at the other defendants and which had specifically excluded Cities were made more general, and the language excluding Cities was replaced by language referring simply to unspecified co-conspirators. In place of the previous specific allegations directed at Cities, the amended complaint substituted two new formulations: first, a general allegation that Cities joined the conspiracy at a time and in a manner not known to the plaintiff; and, second, that the other defendants and various of their co-conspirators “secretly threatened, induced and conspired with defendant Cities Service to break off all dealings with plaintiff.” Judge Herlands held petitioner’s and Cities’ cross-motions under advisement for a little more than a year while he considered motions for summary judgment against petitioner made by the other defendants. Then, on June 23, 1964, in a long and comprehensive opinion dealing with both sets of motions, he denied the motions for summary judgment made by the other defendants, again postponed final disposition of Cities’ motion and granted Waldron the opportunity to conduct further discovery of Cities under Rule 56 (f). Presumably, decision on petitioner’s motion was deferred so long because, had the motions of the defendants other than Cities for summary judgment been granted, petitioner’s case against Cities would have also been terminated. In any event, the order implementing the decision permitted petitioner to depose all those members of Cities’ executive staff then alive who he alleged had participated at all in the dealings concerning Iranian oil, namely, Burl S. Watson, Cities’ chairman of the board, Alfred P. Frame, Cities’ first vice president, and J. Edgar Heston, Cities’ manager of oil production. The order also directed Cities to produce all documents and memoranda relating to (a) the Kuwait and Consortium issues, (b) conversations and communications between it and any other defendant between June 11, 1952, and October 1, 1952, concerning petitioner, his associates, and Cities’ dealings in connection with Iranian oil, (c) conversations and communications between Cities and any other defendant between June 11, 1953, and September 30, 1953, pertaining to negotiations between Waldron and the Richfield Oil Corp. concerning the purchase by Richfield of Iranian oil, and (d) conversations and communications between any deponent for Cities and any other Cities’ employee involving the subject matter described in the preceding categories. The depositions of the three Cities’ executives were completed during the months of July and August 1964 and in connection therewith more than 140 documents were produced. In September 1964 petitioner moved for the following additional discovery: first, the production of all documents in the possession of Cities dealing with Cities’ activities in connection with Iranian oil between June 1952 and January 1955; second, the production of all documents relating to the same subject matter in the possession of the other defendants; and third, the production of all relevant documents from, and oral examination of, Ray Carter, a former Cities employee who had acted as an intermediary between Cities and petitioner in their dealings. Petitioner further indicated a desire to depose various unspecified officials of the other defendants after the completion of the discovery detailed in his motion. Immediately thereafter, in October 1964, Cities for the third time renewed its motion for summary judgment and argument was had on both motions in February 1965. Judge Herlands granted Cities’ motion on September 8, 1965, holding that petitioner had failed to fulfill the requirement of amended Rule 56 (e) that a party opposing a properly supported summary judgment motion must produce by affidavit or otherwise “specific facts showing that there is a genuine issue for trial.” As to petitioner’s cross-motion for additional discovery under Rule 56 (f), the court ruled that petitioner’s total failure by that date to produce any evidence tending to show Cities’ participation in a conspiracy to boycott him, despite considerable discovery, demonstrated that additional discovery would be merely a fishing expedition and would unduly harass respondent. The Court of Appeals for the Second Circuit affirmed the judgment of the District Court in all particulars. Petitioner states that three questions are presented by this case: first, whether he was improperly limited in the discovery permitted him prior to the rendering of summary judgment (Parts II, V, infra); second, whether sufficient material facts to raise genuine issues for trial were shown (Part III, infra); and third, whether the lower courts held, erroneously, that amended Rule 56 (e), Fed. Rules Civ. Proc., places the burden of showing that there is a genuine issue of material fact for trial on the party opposing a motion for summary judgment (Part IV, infra). II. We turn first to one aspect of petitioner’s contention that his discovery was unduly restricted: whether certain orders of the trial judge imposed unfair limits on his access to relevant information. The second aspect of petitioner’s discovery argument, addressed to what he viewed as the necessity for additional discovery to enable him adequately to oppose the summary judgment motion, we shall discuss in Part V of the opinion. Petitioner’s initial complaint, as set out more fully, supra, at 259-261, specifically alleged that Cities had adhered to the conspiracy by refusing to deal with petitioner after being bought off by the Kuwait contract and an opportunity to participate in the Consortium. Similarly, in his deposition, Waldron reiterated his belief that the only links between Cities and the conspiracy were those two payoffs. Thus, by petitioner’s own doing, respondent Cities Service was from the beginning of the litigation placed in a vastly different position from the other alleged co-conspirators. Cities, realizing this, apparently felt that if it could show that it had in fact not received any payoff or bribe from the other defendants, petitioner would abandon his contention that it had joined the alleged conspiracy. Accordingly, immediately after it had taken Waldron’s deposition, Cities made its motion for summary judgment accompanied by Hill’s affidavit and the supporting documents described, supra, at 263-264. When Judge Herlands declined to grant Cities’ motion at that time, he permitted petitioner to examine Cities about those specific facts that had theretofore been the only ones alleged as evidence of conspiracy on the part of Cities, other than its failure to make a deal with petitioner for Iranian oil. Petitioner appears to argue that it was erroneous for the trial court to limit his discovery initially to Hill rather than Jones, the person with whom he primarily dealt. However, since petitioner was the party who had injected Kuwait and Consortium into the case and since Hill had been the ranking Cities official in charge of both transactions, it is difficult to conclude that the trial judge abused his discretion in ordering petitioner to begin by examining Hill. Even assuming arguendo that it was error for petitioner to have been required to begin his discovery with Hill rather than Jones, the issue is moot for purposes of appellate review because Jones’ accidental death occurred prior to the time petitioner would have been able to commence deposing him had he been permitted by Judge Herlands to do so. There is no reason to believe that petitioner would have made any greater efforts to see that the examination of his associates, Bentley, Zoés, and Brown, was carried out in less than the 13 months that were actually taken had he been scheduled to depose Jones at the end of that time rather than Hill. Obviously it was Jones’ death, rather than any action taken by Judge Herlands, that prevented his being deposed at some later date. Although petitioner had begun to de-emphasize the significance of Kuwait and the Consortium to his claim of conspiracy by Cities at the first argument on Cities’ motion for summary judgment, it was not until after the additional information described above was obtained through Hill’s deposition, and the supporting documents accompanying it, that petitioner began to stress the contention that Cities had undergone a dramatic shift in its attitude towards him in September 1952, immediately after Jones had returned from a trip to Iran arranged for him by Waldron. While it is probably to overstate the case to say, as does respondent, that petitioner abandoned his Kuwait and Consortium claims at this time, it is fair to say that petitioner no longer seriously contended that the evidence relating to them was sufficient in itself to raise a genuine issue of material fact. After again declining to grant Cities’ motion for summary judgment, Judge Herlands entered an order permitting further discovery of Cities. It provided, as described in more detail, supra, at 268-269, for an examination of those Cities executives still alive who participated in the negotiations between petitioner, Cities, and the Government of Iran. It also directed the production of all documents in Cities’ possession relating to any contemplated dealings in Iranian oil during the period of Waldron’s active contact with Cities, i. e., between June 11, 1952, and October 1, 1952. This order had the effect of permitting Waldron to examine every surviving Cities official with whom he had dealt to any substantial degree in his attempts to arrange a sale of Iranian oil. He was permitted to examine them, and have production of all documents in connection therewith, concerning all the events that he had specified in his original complaint or in the two previous oral arguments on Cities’ motion for summary judgment as being evidence of Cities’ participation in the alleged conspiracy. Certainly the scope of this order, viewed as of the time it was made, does not seem open to any serious challenge as unduly restrictive, and petitioner did not make any such argument at the time the order was proposed. It was only when petitioner moved for additional discovery in the fall of 1964 that he began seriously to complain about the allegedly limited scope of the prior discovery order. Accordingly, we shall postpone more detailed discussion of this point to Part V, infra. Petitioner did argue then, and still contends now, that he was prejudiced by the failure of Judge Herlands to let him examine various other Cities executives, in addition to Jones, at the time he was permitted to depose Hill. He bases this contention on the ground that many of these executives were men of advanced years at that time and that the deaths that in fact ensued could thus have been reasonably foreseen. The fallacy in this argument is that it was only after Hill testified that petitioner changed the focus of his argument before the trial judge to minimize the significance of Kuwait and Consortium and to suggest other possible motivations for Cities to. conspire. Certainly Judge Herlands was not required to anticipate that petitioner would change the entire factual emphasis of his case so that individuals who did not at the time appear to be particularly vital to the litigation would subsequently become so. Moreover, petitioner did not even ask to depose any Cities official who subsequently died, other than Jones, at the time he was permitted to examine Hill. Therefore, petitioner’s claim of prejudicial error here must fail also. III. In his affidavit in support of Waldron’s motion for additional discovery, petitioner’s attorney detailed the facts produced to date that assertedly showed Cities’ participation in the conspiracy, in order both to support his contention that additional discovery was needed and to demonstrate that summary judgment in favor of Cities should not be granted. We shall first discuss the propriety of Judge Herlands’ award of summary judgment before dealing further (in Part V) with petitioner’s contentions relating to additional discovery. A. When petitioner moved for additional discovery in 1964, in opposition to Cities’ still pending motion for summary judgment, his counsel’s affidavit pointed. to the following evidence as tending to show a participation by Cities in the alleged conspiracy to boycott his attempts to resell the Iranian oil to which he allegedly-had access nnder his contract. Cities had a need to import substantial amounts of crude oil for its domestic operations in the United States, this need amounting to some 100,000 barrels per day. Cities had theretofore been unable to obtain an independent oil supply in the Middle East despite its long-existing desire to do so. Through petitioner, Cities had two assertedly attractive possibilities of fulfilling its crude oil needs. The first consisted of short-term purchases of Iranian oil at prices substantially below the going rates for Mideast oil via petitioner’s contract with NIOC. The second, in which Cities was apparently more interested and on which tentative agreement with petitioner was allegedly reached, was for Cities to enter into a long-term arrangement to take over the operation of the entire Iranian oil industry (or a substantial portion thereof) in place of Anglo-Iranian, and to compensate Waldron for what would amount to a transfer of his contract rights. The evidence further showed that Cities went to substantial lengths to explore the possibilities presented by petitioner. Waldron, at Jones’ request, secured an invitation for Jones, together with other Cities executives, from Premier Mossadegh to go to Iran to look over the production facilities that NIOC had appropriated from Anglo-Iranian. Upon examination of the facilities, the Cities executives concluded that, notwithstanding the departure of the British personnel who had previously been in charge of operations, the Iranians had managed to keep them in relatively good operating condition. This conclusion was orally presented to Mossadegh by Jones and a comprehensive written report on specific details was promised to be transmitted later. During his stay in Iran, Jones also made a side trip to Kuwait to visit the Kuwait Oil Company, owned jointly by Anglo-Iranian and Gulf. On the return of the Cities party to the United States, Watson informed petitioner in October 1952 that Cities did not propose to take any steps relative to obtaining Iranian oil, although another Cities executive subsequently indicated to him that Cities had not entirely abandoned its interest in his proposals. However, Cities had no further significant dealings with Waldron thereafter. Meanwhile on September 21, 1952, Carter, acting on petitioner’s behalf, had sent a telegram to Secretary of the Interior Chapman offering to sell a cargo of Iranian-produced aviation gasoline to the United States Air Force. Carter stated that Jones had said that he would use his good offices to get the United States to purchase the gasoline. Instead, Jones cabled Watson instructions to tell Chapman that he was disassociating himself from Carter’s efforts and that he questioned the wisdom of Carter’s proposal. This Watson did. Subsequently, in January 1953, Jones wrote to the incoming Secretary of State and Attorney General informing them of his belief that the only solution to the Iranian oil problem would be some sort of agreement between Iran and Anglo-Iranian. He accompanied this missive with a legal memorandum which stated that under international law Iran appeared to have the right to nationalize the Anglo-Iranian oil properties, but he asserted that the memorandum had not been prepared as a step toward Cities’ involving itself in the Iranian situation. Three weeks later the final contract with Gulf for a 15-year supply of 21,000 barrels per day of Kuwait oil, plus an option for an additional 30,000 barrels per day, was signed by Cities and Gulf. Meanwhile Waldron continued his unsuccessful efforts to sell Iranian oil to various American companies. In particular, in June 1953, he entered into extensive negotiations with the Richfield Oil Company, in which Cities had about a one-third interest. Although great interest was shown initially by Richfield, petitioner was told in September that it had decided not to purchase Iranian oil after all. Then, in 1954 the Consortium was set up to take back Anglo-Iranian’s properties and concession from NIOC, and Richfield obtained a share of about 1%% therein. Petitioner argues that the inference that Cities was a participant in the alleged conspiracy to boycott him.follows from the foregoing facts. Even viewed without reference to other facts of record, it is apparent that petitioner’s main argument is that Cities’ failure to follow through on its original substantial interest in dealing with him is substantial evidence of participation in the boycott allegedly organized by the other defendants. And undoubtedly, given no contrary evidence, a jury question might well be presented as to Cities’ motives in not dealing with Waldron, cf. Poller v. Columbia Broadcasting System, Inc., 368 U. S. 464 (1962), notwithstanding that such a failure to deal conceivably might also have resulted from a whole variety of non-conspiratorial motives involving the exercise of business judgment as to the attractiveness of the opportunity offered by petitioner. However, as we next show, the record in this case contains an overwhelming amount of such contrary evidence of Cities’ motives, much of it supplied by petitioner himself. B. Immediately after the nationalization, Anglo-Iranian publicly announced both in the news media and throughout the oil industry its view that the nationalization of its properties and the abrogation of its concession rights amounted to an illegal act under international law and stated its intention to “take all such action as may be necessary to protect its rights in any country,” including the bringing of lawsuits against any purchaser of Iranian oil. In addition, the evidence introduced by petitioner tended to show that the other major oil company defendants in this suit, as a result of their fear that countries in which they held concessions would follow the Iranian lead should the nationalization of Anglo-Iranian’s property be successful, also communicated to Cities and other domestic oil companies their intention to support Anglo-Iranian by refusing to deal with any company that handled Iranian oil. That such threats were both substantial and effective is demonstrated by the testimony of petitioner that numerous American oil companies, not made parties defendant in this action, refused to deal with him for precisely the reason that they were afraid of retaliation. In addition, petitioner testified that the other defendants had threatened to boycott any companies that leased tankers for use in transporting Iranian oil. It is thus clear that the evidence furnished by petitioner himself provides a much more compelling explanation for Cities’ failure to purchase Iranian oil than does his argument that such failure is evidence of conspiratorial behavior by Cities. When this explanation is placed in juxtaposition with the evidence introduced by Cities showing that the Kuwait deal was arranged long before the nationalization, that Cities objected continually to the formation of the Consortium, and that Cities refused the minimal share offered it as a prospective participant therein after the failure of its efforts to block the formation of the Consortium, the suggestion that Cities was in some manner bought off becomes insupportable. Petitioner attempts to escape the force of this showing by arguing that he is obligated not to demonstrate why Cities conspired but only to show that Cities in fact conspired. However, this contention, though undoubtedly true in the abstract, has little relevance to Waldron's theory of how he has introduced evidence that Cities in fact conspired. Petitioner himself consistently argues that Cities’ interests in this entire situation were directly opposed to those of the other defendants. The others had large supplies of foreign oil; Cities did not. The others allegedly were members of an international cartel to control foreign oil; Cities was not. The others were interested in re-establishing the status quo prior to nationalization; Cities was not. It is doubtless due to the difficulty of suggesting a motive for Cities to conspire against him, coupled with Cities’ demonstrated interest in his proposals for several months (to the extent that Cities even paid Waldron several thousand dollars to reimburse him for his time and expenses incurred in arranging Jones’ trip to Iran), that prompts petitioner, understandably enough, to insist that motive is not controlling in his case. However, to suggest, as petitioner does, that Cities’ participation in the conspiracy is shown by its failure to deal with him is itself to rely on motive. Obviously it would not have been evidence of conspiracy if Cities refused to deal with Waldron because the price at which he proposed to sell oil was in excess of that at which oil could be obtained from others. Therefore, it is only the attractiveness of petitioner’s offer that makes failure to take it up suggestive of improper motives. However, it has been demonstrated above that for Cities to enter into any deal with Waldron for Iranian oil would have involved it in a variety of unpleasant consequences sufficient to deter it from making any such deal. Therefore, not only is the inference that Cities’ failure to deal was the product of factors other than conspiracy at least equal to the inference that it was due to conspiracy, thus negating the probative force of the evidence showing such a failure, but the former inference is more probable. Petitioner does attempt to point to other evidence besides the simple failure to deal as showing conspiracy. He places considerable reliance on the report prepared for transmission to Mossadegh in October 1952, immediately after Jones’ return from Iran and Watson’s announcement to Waldron that Cities was no longer interested in Iranian oil. He stresses two aspects of the report as evidencing Cities’ participation in the boycott: first, the statement that it was necessary for Iran to come to some sort of agreement with the British (Anglo-Iranian was owned 51% by the British Government) about compensation for the concession rights and expropriated property, and, second, the suggestion that there existed the possibility that an American company (presumably Cities) would import some Iranian oil purchased directly from NIOC. It is interesting to note that petitioner attempts to use this memorandum in two opposing ways. He suggests, on the one hand, that the reference to the necessity for British cooperation if the Iranian oil industry were to be reactivated is evidence of Cities’ adherence to the scheme initiated by Anglo-Iranian to force Iran to return the properties, and, on the other, that the statement that it would be possible for Iran to sell substantial amounts of oil without such an agreement is evidence of Cities’ continued interest in Iranian oil. It is difficult to see how the latter contention supports an inference of conspiracy. Petitioner also ignores the fact that the latter alternative was characterized by Jones in the report as less desirable insofar as Iran’s long-term interests were concerned, and that, with regard to Cities’ participation in such an arrangement, Jones also stated that “ [development of some Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Burton delivered the opinion of the Court. This case relates to a taxpayer who, for several years, held an undivided interest in an orange grove and engaged in the business of growing and selling the oranges it produced. In the midst of the 1944 growing season, she sold her interest in the grove, including an unmatured crop then on the trees. The question before us is whether, for federal income tax purposes, she must treat that part of her profit from the sale which is attributable to the unmatured crop as ordinary income or as a capital gain. For the reasons hereafter stated, she must treat it as ordinary income. In 1944, Mrs. M. Gladys Watson, one of the petitioners here, and her two brothers, each owned an undivided one-third interest in a 110-acre navel orange grove near Exeter, Tulare County, California. Its management had been supervised by her brothers since 1912 and, since 1942, she and her brothers had operated it as a partnership. It was the oldest and one of the best groves in the locality. Its production per acre was about twice the average of such production in the county. In each of the last five years the value of its crop had increased over that of the year before. In 1943 it produced 79,851 loose boxes of oranges, yielding a gross income of $136,808.71. After deducting all expenses of cultivation, operation, picking and hauling, a net income of $92,153.05 was left. Anticipating a heavy frost after November, 1944, one of the brothers advocated selling the grove before then. Accordingly, in May or June, it was offered for $197,100, complete, including land, trees, unmatured crop, improvements, equipment and a five-acre peach orchard. At about that time the 1944 orange crop was in bloom. By July the smaller fruit had dropped from the trees and the crop was “set,” but not assured. A purchaser became interested but delayed his decision so as to determine more accurately the probable crop and to cause the sellers to bear more of the expense of its care. He examined past production records and, by early August, received estimates that the 1944 crop might be from 70,000 to 80,000 boxes, which, at current prices, would bring him $120,000 for the crop above expenses. One of Mrs. Watson’s brothers also estimated the 1944 crop at 70,000 boxes if it matured. August 10, the sales price of $197,100 was agreed upon, payable $10,000 in cash and the balance September 1. No allocation of the price between the crop and the rest of the property was specified but the seller bore the expense of caring for the crop up to September 1, amounting to $16,020.54. The sale was carried through and there was no serious frost. The crop filled 74,268 boxes. The purchaser sold them for $146,000, yielding him a net return of $126,000. Mrs. Watson filed a joint return with her husband, taking full deductions for her'one-third share of all of the business expenses incurred in the cultivation of the crop, but treating her gain from the sale of the grove, including the unmatured crop, as a long-term capital gain. On that basis, her net gain from the sale of the grove was shown as $48,819.82, but, treating it as a long-term capital gain, only 50% of it, or $24,409.91, was included in her taxable income. The Commissioner of Internal Revenue assessed a deficiency against petitioners, largely based on his claim that whatever part of Mrs. Watson’s income was attributable to the unmatured crop should be treated as ordinary income. He allocated $122,500, out of the $197,100 received for the grove, as attributable to the unmatured crop. On that premise, he assessed a deficiency of $24,101.35 against petitioners on their joint return. On review, the Tax Court, with two judges dissenting, sustained the Commissioner in principle but reduced to $40,000 the portion of the proceeds attributable to the crop. 15 T. C. 800. With other adjustments, not material here, the Tax Court reduced the deficiency to $6,920.35-. The Court of Appeals affirmed. 197 F. 2d 56. In the meantime, the Tax Court made comparable decisions in McCoy v. Commissioner, 15 T. C. 828, and Owen v. Commissioner, P-H TC Memo, ¶ 50,300, each of which was reversed on appeal, 192 F. 2d 486 (C. A. 10th Cir.), and 192 F. 2d 1006 (C. A. 5th Cir.). Shortly before the latter decisions, the Revenue Act of 1951 amended the statute in relation to taxable years beginning after December 31, 1950, to permit proceeds from certain sales of unharvested crops to be treated as capital gains. We granted certiorari in the instant case to resolve the above-indicated conflict of statutory construction still affecting many sales made before 1951. 344 U. S. 895. The issue before us turns upon the Acts of Congress. In 1951, Congress, for the first time, dealt expressly and specifically with this subject. While that action was prospective only, its terms throw light on the problems of prior years. The adoption of that amendment emphasized the point that the question was one of federal law. Its adoption also recognized that, in order for such income to be a capital gain, an affirmative statement by Congress was needed. Finally, it not only permitted proceeds of unharvested crops to be treated as capital gains under certain circumstances, but it provided that, under those circumstances, the taxpayer could not deduct from his taxable income the expenses attributable to the production of the unharvested crop. Those expenses thereafter must be treated as capital investments added to the basis of the property to which they relate. This emphasizes the impropriety of the interpretation advocated by Mrs. Watson in the instant case. She seeks to deduct her share of the crop cultivation expenses at 100% up to the date of the sale. At the same time, she claims a right to report only 50% of her gain on the sale of those crops to which the cultivation expenses relate. In the instant case, we are dependent upon § 117 (j) of the Internal Revenue Code, as in effect in 1944. The controlling language in that subsection then required that, in order for gains from the sale of property to be treated as capital gains, the property sold must be “used in the trade or business” of the taxpayer, “held for more than 6 months,” and not “held by the taxpayer primarily for sale to customers in the ordinary course of his trade •or business.” In the instant case, the Commissioner contends that, while the land and trees met these and all other tests of the subsection, the unmatured, unharvested crop of oranges met none of the above three. Each day brought the annual crop closer to its availability for sale in the ordinary course of that business. While the uncertainty of its condition at maturity discounted its current value, nevertheless, its presence contributed substantially to the value of the grove. The Commissioner allocated to the unmatured crop, as of September 1, a value of $122,500 out of the $197,100. The Tax Court reduced this to $40,000. We accept the latter amount now confirmed by the Court of Appeals. It is obvious that the parties to this sale did in fact attribute substantial value to the unmatured crop. If, at any moment, the crop had been stripped from the trees or destroyed by frost, there would have resulted at once a substantial reduction in the sales value of the grove. Assuming $40,000 to be the value fairly attributable to the presence of the crop in August and September, 1944, it remains for the taxpayer to demonstrate that § 117 (j) has authorized that value, in addition to the value of the land, trees, improvements and equipment, to be treated as a capital gain. Mrs. Watson and the Courts of Appeals for the Fifth and Tenth Circuits have placed emphasis upon a claim that, under the law of the state where the land is situated, an unmatured, unharvested crop, for many purposes, is treated as real property. We regard that as immaterial. Whether or not the crop be real property, the federal income tax upon the gain resulting from its sale is, in its nature, a subject of federal law. The Commissioner urges two grounds in support of his position that § 117 (j) does not authorize the taxpayer’s treatment of the proceeds of the unmatured crop as a capital gain. The first is that the proceeds fairly attributable to the crop are derived from property held by the taxpayer primarily for sale to customers in the ordinary course of the taxpayer’s trade or business. We agree with that contention. Although the property was not sever-able at the date of its sale, there is nothing in the Act requiring it to be severable. While, in previous years, like crops were held for a sale that occurred after maturity, in 1944 the date of that sale came September 1. There is nothing in the Act that distinguishes between the taxable character of a gain derived from a present sale discounting the hazards of the future, and one derived from a later sale when the hazards are past. After the transfer of title to the grove, the crop on the trees retained its character and continued to be held for sale to customers of the grove owner in the ordinary course of the owner’s trade or business. The Commissioner’s treatment of the proceeds of sales of unmatured crops as ordinary income in the absence of a statutory requirement to the contrary is consistent with the policy evidenced in Williams v. McGowan, 152 F. 2d 570, 572, which established in the Second Circuit, in 1945, the doctrine that “upon the sale of a going business it [the sales price] is to be comminuted into its fragments, and these are to be separately matched against the definition in § 117 (a)(1) . . . It is consistent also with the policy of the Bureau of Internal Revenue and the Tax Court, dating, at least, from the statement made by the Bureau in 1946, that, under circumstances comparable to those before us, “regardless of their stage of development, any gain realized from the sale of growing crops is ordinary income.” We do not have here the situation which arises from the sale of land, including coal or other mineral wealth not separated from its natural state and not in the course of annual growth leading to a seasonal separation. See Butler Consolidated Coal Co. v. Commissioner, 6 T. C. 183. The instant case also is distinguishable from that of growing timber which is not in itself an annual or short-term product. See Carroll v. Commissioner, 70 F. 2d 806; Camp Manufacturing Co. v. Commissioner, 3 T. C. 467. Having reached this conclusion, we find it unnecessary to pass upon the Commissioner’s second contention that, because the crop did not come into existence before it was “set” in July, or at least before it was in bloom in May or June, it had not been held by Mrs. Watson for more than six months at the time of its sale. Accordingly, the judgment of the Court of Appeals is Affirmed. In 1942 it yielded 54,939 boxes with a gross income of $82,521.17 and a net of $49,790.10. Its average annual yield from 1934 to 1943 was 55,097 boxes with a gross income of $46,512.68 and a net of $22,141.42. § 117 (b) and (c)(2), I. R. C., as amended by § 150 (c) of the Revenue Act of 1942, c. 619, 56 Stat. 843-844, 26 U. S. C. (1940 ed., Supp. V) § 117 (b) and (c)(2). 65 Stat. 500-501, 26 IT. S. C. (Supp. V) §§ 117 (j), 24(f), 113 (b)(1). The Revenue Act of 1951 added to §117 (j) of the Internal Revenue Code: “(3) Sale of LAND with unharvested crop.- — In the case of an unharvested crop on land used in the trade or business and held for more than 6 months, if the crop and the land are sold or exchanged (or compulsorily or involuntarily converted as described in paragraph (2)) at the same time and to the same person, the crop shall be considered as ‘property used in the trade or business.’ ” 65 Stat. 500, 26 U. S. C. (Supp. V) § 117 (j) (3). And, equally important, it added to § 24 of the Internal Revenue Code: “(f) Sale op Land With Unharvested Crop. — Where an unharvested crop sold by the taxpayer is considered under the provisions of section 117 (j) (3) as ‘property used in the trade or business,’ in computing net income no deduction (whether or not for the taxable year of the sale and whether for expenses, depreciation, or otherwise) attributable to the production of such crop shall be allowed.” Id,., at 501, 26 U. S. C. (Supp. V) § 24 (f). The purpose of Congress to make this amendment prospective, rather than retroactive, is emphasized in the very next section of the 1951 Act. That section made retroactive to 1942 another amendment to §117 (j). It redefined capital gains so as to include the proceeds of certain sales of livestock, provided such stock be held for draft, breeding or dairy purposes. Stock so held is comparable to the orange trees rather than to the orange crop in the instant case. In this connection, the Senate Committee on Finance, when reporting the proposed amendment in 1951, said: “Your committee believes that sales of land together with growing crops or fruit are not such transactions as occur in the ordinary course of business and should thus result in capital gains rather than in ordinary income. Section 323 of the bill so provides. “Your committee recognizes, however, that when the taxpayer keeps his accounts and makes his returns on the cash receipts and disbursements basis, the expenses of growing the unharvested crop or the unripe fruit will be deducted in full from ordinary income, while the entire proceeds from the sale of the crop, as such, will be viewed as a capital gain. Actually, of course, the true gain in such cases is the difference between that part of the selling price attributable to the crop or fruit and the expenses attributable to its production. Therefore, your committee’s bill provides that no deduction shall be allowed which is attributable to the production of such crops or fruit, but that the deductions so disallowed shall be included in the basis of the property for the purpose of computing the capital gain. “The provisions of this section are applicable to sales or other dispositions occurring in taxable years beginning after December 31, 1950. “The revenue loss under this provision is expected to be about $3 million annually.” S. Rep. No. 781, 82d Cong., 1st Sess. 47-48. Internal Revenue Code, as amended, 56- Stat. 846: “SEC. 117. CAPITAL GAINS AND LOSSES. “(j) Gains and Losses . . . From the Sale or Exchange op Certain Property Used in the Trade or Business.— “(1) Definition of property used in the trade or business. — • “For the purposes of this subsection, the term ‘property used in the trade or business’ means property used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 23 (1), held for more than 6 months, and real property used in the trade or business, held for more than 6 months, which is not (A) property of a kind which would properly be in-' cludible in the inventory of the taxpayer if on hand at the close of the taxable year, or (B) 'property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business. “(2) General rule. — If, during the taxable year, the recognized gains upon sales or exchanges of property used in the trade or business . . . exceed the recognized losses from such sales, exchanges, and conversions, such gains and losses shall be considered as gains and losses from sales or exchanges of capital assets held for more than 6 months. If such gains do not exceed such losses, such gains and losses shall not be considered as gains and losses from sales or exchanges of capital assets. . . .” (Italics supplied.) See 26 U. S. C. §117 (j). “The production of fruit from orchards or groves constitutes a business, and section 117 (j) of the Code, supra, is applicable to the sale of an orchard or grove. The crops are produced with the primary purpose of selling the fruit to customers in the ordinary course of the business. Therefore, regardless of their stage of development, any gain realized from the sale of growing crops is ordinary income. “In view of the foregoing, it is held that, for Federal income tax purposes, where citrus groves are sold with fruit on the trees, a portion of the selling price must be allocated to the fruit and the balance to the land and trees. Gain from the sale of the fruit will constitute ordinary income. Gain from the sale of the land and trees may be treated as capital gain under section 117 (j) of the Internal Revenue Code, provided the recognized gains from all transactions coming within the purview of that section exceed the recognized losses thereunder.” 1946-2 Cum. Bull. 31. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

L

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Chief Justice Warren delivered the opinion of the Court. This action was instituted by petitioner in the District Court for the District of Columbia. The principal relief sought is a declaration that petitioner’s removal and debarment from federal employment were invalid. Prior to trial, the District Court granted the respondents’ motion for judgment on the pleadings. The judgment was affirmed, one judge dissenting, by the Court of Appeals for the District of Columbia Circuit, relying on its decision in Bailey v. Richardson, 86 U. S. App. D. C. 248, 182 P. 2d 46, sustained here by an equally divided vote, 341 U. S. 918. We granted certiorari, 348 U. S. 882, because the case appeared to present the same constitutional question left unresolved by this Court’s action in Bailey v. Richardson, supra. I. The basic facts are undisputed. Petitioner is a professor of medicine, specializing in the study of metabolism, at Yale University. For several years prior to 1953, because of his eminence in the field of medical science, he was employed as a Special Consultant in the United States Public Health Service of the Federal Security Agency. On April 10, 1953, the functions of the Federal Security Agency were transferred to the Department of Health, Education, and Welfare, headed by respondent Hobby. Petitioner’s duties required his presence in Washington from four to ten days each year, when called upon by the Surgeon General, to render advice concerning proposals to grant federal assistance to various medical research institutions. This work was not of a confidential or sensitive character and did not entail access to classified material. Petitioner was compensated at a specified per diem rate for days actually worked. At the time of his removal, petitioner was employed under an appointment expiring on December 31, 1953. On March 21, 1947, Executive Order 9835 was issued by the President. It provided that the head of each department and agency in the Executive Branch of the Government “shall be personally responsible for an effective program to assure that disloyal civilian officers or employees are not retained in employment in his department or agency.” Toward that end, the Order directed the establishment within each department or agency of one or more loyalty boards “for the purpose of hearing loyalty cases arising within such department or agency and making recommendations with respect to the removal of any officer or employee ... on grounds relating to loyalty . . . .” The order also provided for the establishment of a central Loyalty Review Board in the Civil Service Commission. The Board, in addition to various supervisory functions, was authorized “to review cases involving persons recommended for dismissal ... by the loyalty board of any department or agency . . . The standard for removal prescribed by the Order was whether, “on all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States.” This standard was amended on April 28, 1951. As amended, the standard to be applied was whether, “on all the evidence, there is a reasonable doubt as to the loyalty of the person involved to the Government of the United States.” In January 1949, Joseph E. McElvain, Chairman of the Board of Inquiry on Employee Loyalty of the Federal Security Agency, notified petitioner that derogatory information relating to his loyalty had been received. Accompanying McElvain’s letter was a detailed interrogatory relating to petitioner’s associations and affiliations. Petitioner promptly completed the form and returned it. Shortly thereafter, McElvain advised petitioner that the Agency Board had determined that no reasonable grounds existed for belief that petitioner was disloyal. In May 1951, following the amendment of the removal standard prescribed by Executive Order 9835, the Executive Secretary of the Loyalty Review Board advised McElvain that petitioner’s case should be reopened and readjudicated pursuant to the amended standard. Three months later, the Acting Chairman of the Loyalty Review Board informed McElvain that a panel of the Loyalty Review Board had considered petitioner’s case and had recommended that it be remanded to the Agency Board for a hearing. Acting on the Loyalty Review Board’s recommendation, McElvain sent petitioner a letter of charges. Sixteen charges were specified, relating to alleged membership in the Communist Party, sponsorship of certain petitions, affiliation with various organizations, and alleged association with Communists and Communist sympathizers. In his reply, made under oath, petitioner denied that he had ever been a member of the Communist Party and set forth information concerning the other charges. On April 1 and 2, 1952, the Agency Board conducted a hearing on petitioner’s case in New Haven, Connecticut. The sources of the information as to the facts bearing on the charges were not identified or made available to petitioner’s counsel for cross-examination. The identity of one or more of the informants furnishing such information, but not of all the informants, was known to the Board. The only evidence adduced at the hearing was presented by petitioner. He testified under oath that he had never been a member of the Communist Party and also testified concerning the other charges against him. He did not refuse to answer any question directed to him. Petitioner’s testimony was supported by the testimony of eighteen other witnesses and the affidavits and statements of some forty additional persons. On May 23, 1952, McElvain notified petitioner that the Agency Board had determined that, on all the evidence, there was no reasonable doubt as to petitioner’s loyalty. Thereafter, on April 6, 1953, petitioner was advised by the Loyalty Review Board that it had determined to conduct a “post-audit” of the Agency Board’s determination and, to this end, “hold a hearing and reach its own decision.” The hearing was held on May 12, 1953, in New Haven, before a panel of the Board consisting of respondents Hessey, Amen, and King. Once again, as at the previous hearing, the only evidence adduced was presented by petitioner. In his own testimony, petitioner denied membership in the Communist Party, discussed his political beliefs and his motives for engaging in the activities and associations which were the subject of the charges, and answered all questions put to him by the Board. In support of petitioner’s testimony, five witnesses stated their long acquaintance with petitioner and their firm conviction of petitioner’s loyalty. In addition to this evidence, the record before the Board contained information supplied by informants whose identity was not disclosed to petitioner. The identity of one or more, but not all, of these informants was known to the Board. The information given by such informants had not been given under oath. The record also contained the evidence adduced by petitioner at the previous hearing. On this record, the Board determined that “on all the evidence, there is a reasonable doubt as to Dr. Peters’ loyalty to the Government of the United States.” By letter of May 22, 1953, the Chairman of the Board advised petitioner of the Board’s finding. The letter further stated that respondent Hobby had been notified of the decision and that petitioner had “been barred from the Federal service for a period of three years from May 18, 1953, and any and all pending applications or existing eligibilities are cancelled.” The order of debarment was made by the Board on behalf of the Civil Service Commission, composed of respondents Young, Moore, and Lawton. Following his removal and after an unsuccessful attempt to obtain a rehearing, petitioner brought the instant suit, naming each of the respondents as a defendant. II. In his complaint, petitioner contends that the action taken against him was “in violation of Executive Order 9835 and the Constitution of the United States . . . .” In support of his contention that the action violated the Executive Order, he makes the allegation, among others, that the Loyalty Review Board “exercised power beyond its power 'to make advisory recommendations ... to the head of the . . . agency’, as defined by Executive Order 9835, Part III, § 1a . . . .” On the constitutional level, petitioner complains chiefly of the denial of any opportunity to confront and cross-examine his secret accusers. He alleges that his removal and debarment deprived him “of liberty and property without due process of law in that they branded him as a person disloyal to his country, arbitrarily, without basis in fact, and without a fair procedure and hearing.” In addition, he alleges that “The imposition of the penalty of ineligibility for government service constituted a violation of the prohibition against bills of attainder and ex post facto laws by punishing the plaintiff by declaring him ineligible to serve the Government without a judicial trial or a fair administrative hearing . . . .” Finally, petitioner alleges that his removal and debarment, solely on the basis of his political opinions, violated his right to freedom of speech. In this Court, petitioner urges us to decide the case on the constitutional issues. These issues, if reached by the Court, would obviously present serious and far-reaching problems in reconciling fundamental constitutional guarantees with the procedures used to determine the loyalty of government personnel. Compare Wieman v. Updegraff, 344 U. S. 183; United States v. Lovett, 328 U. S. 303; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123. And note this Court’s division in Bailey v. Richardson, supra. We find, however, that the case can be decided without reaching the constitutional issues. From a very early date, this Court has declined to anticipate a question of constitutional law in advance of the necessity of deciding it. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553. See Alma Motor Co. v. Timken-Detroit Axle Co., 329 U. S. 129, 136. Applying this rule to the instant case, we must at the outset determine whether petitioner’s removal and debarment were effected in accord with Executive Order 9835. On consideration of this question, we conclude that the Loyalty Review Board’s action was so patently in violation of the Executive Order — in fact, beyond the Board’s delegated jurisdiction under the Order — that the constitutionality of the Order itself does not come into issue. The power of the Loyalty Review Board to adjudicate individual cases is set forth specifically in § 1a of Part III of the Order: “The Board shall have authority to review cases involving persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency and to make advisory recommendations thereon to the head of the employing department or agency. Such cases may be referred to the Board either by the employing department or agency, or by the officer or employee concerned.” Similarly, § 3 of Part II, which prescribes the procedures to be followed in loyalty cases under the Order, provides: “A recommendation of removal by a loyalty board shall be subject to appeal by the officer or employee affected, prior to his removal, to the head of the employing department or agency . . . and the decision of the department or agency concerned shall be subject to appeal to the Civil Service Commission’s Loyalty Review Board, hereinafter provided for, for an advisory recommendation.” The authority thus conferred on the Loyalty Review Board was limited to “cases involving persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency . . . .” And, even as to these cases, the Loyalty Review Board was denied any power to undertake review on its own motion ; only the employee recommended for dismissal, or his department or agency, could refer such a case to the Loyalty Review Board. In petitioner's case, the Board failed to respect either of these limitations. Petitioner had been twice cleared by the Agency Board and hence did not fall in the category of “persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency.” Moreover, petitioner’s case was never referred to the Loyalty Review Board by petitioner or the Agency. Instead, the Loyalty Review Board, acting solely on its own motion, undertook to “hold a hearing and reach its own decision.” On both grounds, the Board’s action was plainly beyond its jurisdiction unless such action was authorized by some other provision in the Order. Section 1 of Part III also provides : “b. The Board shall make rules and regulations, not inconsistent with the provisions of this order, deemed necessary to implement statutes and Executive orders relating to employee loyalty. “c. The Loyalty Review Board shall also: “(1) Advise all departments and agencies on all problems relating to employee loyalty. “(2) Disseminate information pertinent to employee loyalty programs. “(3) Coordinate the employee loyalty policies and procedures of the several departments and agencies. “(4) Make reports and submit recommendations to the Civil Service Commission for transmission to the President from time to time as may be necessary to the maintenance of the employee loyalty program.” Acting under subsection (b), the Board promulgated detailed regulations, effective December 14, 1947, elaborating its powers under the Order. The regulations distinguished between two types of proceedings in individual cases. The first dealt with appeals from adverse decisions. The second, described in Regulation 14, claimed for the Board a very different function. As amended on January 22, 1952, Regulation 14 provided: “Post-audit and review oj files, (a) The Board, or an executive committee of the Board, shall, as deemed necessary from time to time, cause post-audits to be made of the files on loyalty cases decided by the employing department or agency, or by a regional loyalty board. “(b) The Board or an executive committee of the Board, or a duly constituted panel of the Board, shall have the right, in its discretion to call up for review any case decided by any department or agency loyalty board or regional loyalty board, or by any head of an employing department or agency, even though no appeal has been taken. Any such review shall be made by a panel of the Board, and the panel, whether or not a hearing has been held in the case, may affirm the procedural method followed and the action taken, or remand the case with appropriate instructions to the agency or regional loyalty board concerned for hearing or for such further action or procedure as the panel may determine. “(c) If a panel reviews a record on post-audit and reaches the conclusion that the determination made below does not fully recognize that it is of ‘vital importance’ as set forth in Executive Order 9835 ‘that persons employed in the Federal service be of complete and unswerving loyalty to the United States/ then the panel may call up the case for a hearing, and after such hearing may affirm or reverse the original determination or decision. Nevertheless, it must always be remembered that while it is important that maximum protection be afforded the United States against infiltration of disloyal persons into the ranks of its employees, equal protection must be afforded loyal.employees from unfounded accusations of disloyalty.” In undertaking to “hold a hearing and reach its own decision” in petitioner’s case, the Board relied on Regulation 14 as the source of its authority. This regulation, however, is valid only if it is “not inconsistent with the provisions of this order.” The Board’s “post-audit” function, when used to survey the operation of the loyalty program and to insure a uniformity of procedures in the various loyalty boards, might well be justified under the Board’s powers to “Advise all departments and agencies on all problems relating to employee loyalty” and “Coordinate the employee loyalty policies and procedures of the several departments and agencies.” But the regulation did not restrict the “post-audit” function to advice and coordination. Rather, it purported to allow the Board “to call up for review any case . . . even though no appeal has been taken” and to hold a new hearing and “after such hearing [to] affirm or reverse the original determination or decision.” The Board thus sought to do by regulation precisely what it was not permitted to do under the Order. Although the Order limited the Board’s jurisdiction to appeals from adverse rulings, the regulation asserted authority over appeals from favorable rulings as well; and although the Order limited the Board’s jurisdiction to appeals referred to the Board by the employee or his department or agency, the regulation asserted authority in the Board to adjudicate individual cases on its own motion. To this extent the regulation must fall. See, e. g., Addison v. Holly Hill Fruit Products, 322 U. S. 607, 616-618, and Federal Communications Commission v. American Broadcasting Co., 347 U. S. 284, 296-297. Our interpretation of the language of the Order is confirmed by The Report of the President’s Temporary Commission on Employee Loyalty, released by the President on March 22, 1947, simultaneously with the Order. Four months before, the Commission had been established “to inquire into the standards, procedures, and organizational provisions for (a) the investigation of persons who are employed by the United States Government or are applicants for such employment, and (b) the removal or disqualification from employment of any disloyal or subversive person.” In conducting its investigation, the Commission sought suggestions from 50 selected government agencies. The replies revealed general agreement “that the employing agency be responsible for the removal of its own employees.” But a substantial number of the replies indicated: “(1) that there should be established an independent over-all centralized authority acting solely for and on behalf of the President in the matter of the removal of disloyal employees; or (2) that the original hearing in loyalty cases should be within the employing agency, subject to a right of appeal to a centralized agency established with a power to review de novo; or (3) that the overall agency be established with advisory powers only.” Of these three proposals, the first was flatly rejected by the Commission, which instead urged the establishment of a centralized agency combining elements of the second and third. The Commission thought it “imperative that the head of each department or agency be solely responsible for his own loyalty program.” On the other hand, “so that the loyalty procedures operative in each of the departments and agencies may be properly coordinated . . . ,” the Commission recognized “that a central review board should be created with definite advisory responsibilities in connection with the loyalty program.” These “advisory responsibilities” were envisaged as “similar to those of a clearing house.” But, in addition, the board was to be authorized to review decisions adverse to employees, when referred to the board by the employee or the employing agency. Nowhere in the report was it even remotely suggested that the board was to have general jurisdiction to adjudicate individual cases; on the contrary, as already noted, the Commission expressly disapproved such a proposal. The Commission’s recommendations, with only slight changes in language, were adopted in the provisions of the Order designating the functions of the Loyalty Review Board. While loyalty proceedings may not involve the imposition of criminal sanctions, the limitation on the Board’s review power to adverse determinations was in keeping with the deeply rooted principle of criminal law that a verdict of guilty is appealable while a verdict of acquittal is not. This safeguard was one of the few, and perhaps one of the most important, afforded an accused employee under the Order. Its effect was to leave the initial determination of his loyalty to his co-workers in the department — to his peers, as it were — who knew most about his character and his actions and his duties. He was thus assured that his fate would not be decided by political appointees who perhaps might be more vulnerable to the pressures of heated public opinion. To sanction the abrogation of this safeguard through Regulation 14, in the face of the Order’s language and the Commission’s report, would be to sanction administrative lawlessness. Agencies, whether created by statute or Executive Order, must of course be free to give reasonable scope to the terms conferring their authority. But they are not free to ignore plain limitations on that authority. Compare United States v. Wickersham, 201 U. S. 390, 398. It is urged, however, that the President’s failure to express his disapproval of Regulation 14 must be deemed to constitute acquiescence in it. From this, it is contended that the President thus impliedly expanded the Loyalty Review Board’s powers under the Order. We cannot indulge in such fanciful speculation. Nothing short of explicit Presidential action could justify a conclusion that the limitations on the Board’s powers had been eliminated. No such action by the President has been brought to our attention. There is, in fact, no evidence that the President even knew of the Board’s practice prior to April 27, 1953, three weeks after the Board had notified petitioner of its intention to “hold a hearing and reach its own decision.” And knowledge of the practice can hardly be imputed to him in view of the relatively small number of cases — only 20 — in which the Board reversed favorable determinations over its 6-year life. On April 27, 1953, the President issued Executive Order 10450, revoking Executive Order 9835 and establishing a new loyalty program. Executive Order 10450 by its own terms did not take effect until 30 days later on May 27, 1953. Although petitioner’s case was heard and determined by the Loyalty Review Board during this 30-day period and hence was not subject to Executive Order 10450, the Government contends that § 11 evidences knowledge and approval of Regulation 14. Section 11, however, did no more than recognize that cases under Regulation 14 might be pending on the effective date and authorize their determination thereafter. And, even as to these cases, § 11 did not authorize the Board to recommend dismissal; at most the Board could remand the cases to the departments or agencies for reconsideration. With respect to cases determined prior to the effective date — such as petitioner’s — § 11 surely affords no basis for divining a Presidential intention to authorize the Board to disregard its previously, defined jurisdictional boundaries. Particularly is this so where, as here, substantial rights affecting the lives and property of citizens are at stake. This Court has recognized that “a badge of infamy” attaches to a public employee found disloyal. Wieman v. Updegraff, 344 U. S. 183, 191. The power asserted by the Board to impose such a badge on petitioner cannot be supported on so tenuous a theory as that pressed upon us. Nor was the adjudication of petitioner’s case, on its own motion and despite a favorable determination by the Agency Board, the only unwarranted assumption of power by the Loyalty Review Board. In cancelling petitioner’s eligibility from “the Federal service” for a period of three years, the Board purported to act under Civil Service Rule V, § 5.101 (a), which bars an employee from “the competitive service within 3 years after a final determination that he is disqualified for Federal employment because of a reasonable doubt as to his loyalty . . . .” The Board’s order of debarment, however, was not limited to “the competitive service” but extended to all federal employ-merit. And although such a “final determination” could be made only by the employing agency, the Board did not wait for respondent Hobby to act on its recommendation. Petitioner’s debarment was made effective on May 18,1953, four days before the Chairman of the Board wrote petitioner of the Board’s determination and nearly four weeks before the Department took action to remove petitioner from his position. The Board’s haste can be understood only in terms of its announced intention to deprive agencies of all discretion to determine whether the Board’s recommendations should be accepted. IV. There only remains for consideration the question of relief. Initially petitioner is entitled to a declaratory judgment that his removal and debarment were invalid. He is further entitled to an order directing the respondent members of the Civil Service Commission to expunge from its records the Loyalty Review Board’s finding that there is a reasonable doubt as to petitioner’s loyalty and to expunge from its records any ruling that petitioner is barred from federal employment by reason of that finding. His prayer for reinstatement, however, cannot be granted, since it appears that the term of petitioner’s appointment would have expired on December 31, 1953, wholly apart from his removal on loyalty grounds. The judgment below is reversed and the cause is remanded to the District Court for entry of a decree in conformity with this opinion. Reversed. 12 Fed. Reg. 1935. Executive Order 10241,16 Fed. Reg. 3690. Authority for such action was purportedly based on Regulation 14 of the regulations of the Loyalty Review Board. 17 Fed. Reg. 631. Three of the five — a former President of Yale University, a former dean of the Yale Medical School, and a federal circuit judge — had given similar testimony at the previous hearing. Authority for the order of debarment was purportedly based on Civil Service Rule V, § 5.101 (a), 5 CFR (1954 Supp.) § 5.101 (a). The question of the Board's jurisdiction was, on request of the Court, argued and briefed. Compare Alma Motor Co. v. Timken-Detroit Axle Co., 329 U. S. 129, 132. 13 Fed. Reg. 253 et seq. Id., at 255, 5 CFR § 210.9. 13 Fed. Reg. 255. 17 Fed. Reg. 631. Regulation 14 had previously been amended on December 17, 1948. 13 Fed. Reg. 9366, 5 CFR § 210.14. Executive Order 9806, 11 Fed. Reg. 13863. The Commission was composed of officials of the Civil Service Commission and the Departments of Justice, State, Treasury, War, and Navy. The Report of the President’s Temporary Commission on Employee Loyalty (1947) 14. Id., at 15. Id., at 26. Id., at 27. Id., at 26. Id., at 35-36. See Bontecou, The Federal Loyalty-Security Program (1953), 29. See the Commission’s report, supra, note 12, at 30: "The standards must be specific enough to assure that innocent employees will not fall within the purview of the disloyalty criteria. Every mature consideration was invoked by the Commission to afford maximum protection to the government from disloyal employees while safeguarding the individual employee with a maximum protection from ill-advised accusations of disloyalty.” As of June 30, 1953, the Board had undertaken in only 58 cases to "hold a hearing and reach its own decision” despite a favorable determination below. Annual Reports of the Civil Service Commission: 1948 (p. 18), 1949 (p. 37), 1950 (pp. 33-34), 1951 (p. 36), 1952 (p. 56), 1953 (p. 31). Of these 58 cases, 20 resulted in reversal of the favorable determination. 1953 Report, p. 31, n. 1. Of these 20 cases, 12 — including petitioner’s — arose in the fiscal year immediately preceding June 30, 1953,. Id., at 31. In the remaining 38 cases — those in which the Board did not reverse the favorable determination — either the Board affirmed the favorable determination or the employee resigned prior to the scheduled hearing. Thus in the 1953 fiscal year, of the 22 hearings scheduled, 8 resulted in affirmance and 2 were cancelled because of resignation. Ibid. 18 Fed. Reg. 2489. Section 11 provides in pertinent part: “On and after the effective date of this order the Loyalty Review Board established by Executive Order No. 9835 of March 21, 1947, shall not accept agency findings for review, upon appeal or otherwise. Appeals pending before the Loyalty Review Board on such date shall be heard to final determination in accordance with the provisions of the said Executive Order No. 9835, as amended. Agency determinations favorable to the officer or employee concerned pending before the Loyalty Review Board on such date shall be acted upon by such Board, and whenever the Board is not in agreement with such favorable determination the case shall be remanded to the department or agency concerned for determination in accordance with the standards and procedures established pursuant to this order.” Italics added. 5 CFR (1954 Supp.) §5.101 (a). Approximately 15% of all federal employees are excepted from “the competitive service.” 1954 Annual Report, United States Civil Service Commission, p. 10. Petitioner himself was not employed in “the competitive service.” His position was classified in “Schedule A,” an exempt category. 5 CFR §6.101 (n); 5 CFR §6.1 (d). On December 17, 1948, the Board issued the following directive, entitled “Legal effect of advisory recommendations,” to the departments and agencies covered by the Order: “The President expects that loyalty policies, procedures, and standards will be uniformly applied in the adjudication of loyalty cases by the several agencies, and the responsibility for coordinating the program and assuring uniformity has been placed in the Loyalty Review Board. The recommendations of the Civil Service Commission in cases of employees covered by section 14 of the Veterans’ Preference Act of 1944 are mandatory, and the loyalty of persons not covered by section 14 should be judged by the same standards. Therefore, if uniformity is to be attained it is necessary that the head of an agency follow the recommendation of the Loyalty Review Board in all cases.” (Italics added.) 13 Fed. Reg. 9372, 5 CFR § 220.4 (d). See Bontecou, The Federal Loyalty-Security Program (1953), 54-55. Compare Kutcher v. Gray, 91 U. S. App. D. C. 266, 199 F. 2d 783. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

C

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Souter delivered the opinion of the Court. Title 28 U. S. C. § 1447(d) limits appellate review of a district court order remanding a ease from federal to state court. The question here is whether an order remanding a case removed under the Securities Litigation Uniform Standards Act of 1998 is appealable, notwithstanding § 1447(d). We hold it is not. I The Private Securities Litigation Reform Act of 1995 (Reform Act), 109 Stat. 787, targeted “perceived abuses of the class-action vehicle in litigation involving nationally traded securities,” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, ante, at 81, and put limits on federal securities class actions. But Congress soon discovered that “[r]ather than face the obstacles set in their path by the Reform Act, plaintiffs and their representatives [were] bringing class actions under state law, often in state court,” ante, at 82. To block this bypass of the Reform Act, Congress enacted the Securities Litigation Uniform Standards Act of 1998 (Act), 112 Stat. 3227; see Dabit, ante, at 81-82. The Act has a preclusion provision and a removal provision: it provides that private state-law “covered” class actions alleging untruth or manipulation in connection with the purchase or sale of a “covered” security may not “be maintained in any State or Federal court,” 112 Stat. 3228 (codified at 15 U. S. C. § 77p(b)), and it authorizes removal to federal district court of “[a]ny covered class action brought in any State court involving a covered security, as set forth in subsection (b),” 112 Stat. 3228 (codified at § 77p(c)). “A 'covered class action’ is a lawsuit in which damages are sought on behalf of more than 50 people. A 'covered security’ is one traded nationally and listed on a regulated national exchange.” Dabit, ante, at 83 (footnotes omitted). Petitioners are eight groups of investors holding mutual fund shares, who filed separate actions in Illinois state courts, each group seeking to represent a class of investors allegedly injured by devaluation of their holdings by respondents (mutual funds, investment advisors, and an insurance company) (hereinafter collectively the funds). The eight complaints asserted only state-law claims, such as negligence and breach of fiduciary duty. The funds filed notices of removal to federal district court in each ease stating, among other things, that the actions were removable under and precluded by the Act. Once in the District Court, however, the investors argued that the cases should be remanded for lack of subject-matter jurisdiction, and in separate orders the District Court for the Southern District of Illinois remanded each case to state court on the ground that the District Court lacked subject-matter jurisdiction on removal because the Act did not preclude the investors’ claims. Since the investors were said to have been injured as “holders” of mutual fund shares, not purchasers or sellers, the District Court reasoned, their claims did not satisfy the “in connection with the purchase or sale” requirement of the Act’s preclusion provision, § 77p(b), and the claims could therefore proceed in state court. The District Court did not decide whether the claims otherwise met the Act’s conditions for preclusion. The funds filed notices of appeal from the remand orders, and in one of the cases, 373 F. 3d 847 (2004), the Seventh Circuit issued an opinion addressing the threshold question of its appellate jurisdiction. The Court of Appeals acknowledged that 28 U. S. C. § 1447(d) bars review of district court orders remanding for lack of subject-matter jurisdiction, 373 F. 3d, at 849 (citing Gravitt v. Southwestern Bell Telephone Co., 430 U. S. 723 (1977) (per curiam)), but decided that the District Court had the last word neither on the characterization of its decision as jurisdictional nor on the correctness of its conclusion that remand was required, see 373 F. 3d, at 849. The Court of Appeals considered all covered class actions involving covered securities, whether precluded or not, to be removable under the Act, and for that reason thought the preclusion issue to be distinct from the jurisdictional issue of whether the case belonged in federal court at all. Id., at 849-850. In the view of the Court of Appeals, if the District Court remanded because, for example, the class comprised too few investors to make the case a covered class action, that would be a jurisdictional decision that the case had been removed improperly, and the order would therefore be unreviewable in accordance with § 1447(d). Id., at 849. But the court held that orders remanding “properly removed” suits as not precluded by the Act are substantive, “unaffected by § 1447(d),” id., at 851, and therefore subject to appellate jurisdiction in the normal course. As the Court of Appeals put it, once the District Court had made that substantive decision of no preclusion in this case, it was time for the court to bow out, not because it had lacked “adjudicatory competence” to begin with but because it had completed its work: “Once a court does all that the statute authorizes, there is no adjudicatory competence to do more. That is not the ‘lack of subject-matter jurisdiction’ that authorizes a remand. Otherwise every federal suit, having been decided on the merits, would be dismissed ‘for lack of jurisdiction’ because the court’s job was finished.” Id., at 850. This remand, the court concluded, was therefore not for want of jurisdiction, and review was not barred by § 1447(d). To satisfy itself that its decision made “practical sense,” the court proposed that the Act reserves to the Federal Judiciary the exclusive authority to make the preclusion decision. Ibid. Treating remand orders in this context as immunized from appeal by § 1447(d) would thus mean that “a major substantive issue in the case [would] escape review,” since it would not be open to resolution in the state court subject to review by this Court. Ibid. The Seventh Circuit subsequently consolidated the funds’ appeals and decided, on the merits, that the Act does preclude the investors’ claims. 403 F. 3d 478 (2005). We granted certiorari to resolve a split of authority on the question whether § 1447(d) bars review of remand orders in cases removed under the Act, 546 U. S. 1085 (2006), and we now vacate for want of jurisdiction on the part of the Court of Appeals. II The policy of Congress opposes “interruption of the litigation of the merits of a removed cause by prolonged litigation of questions of jurisdiction of the district court to which the cause is removed,” United States v. Rice, 327 U. S. 742, 751 (1946), and nearly three years of jurisdictional advocacy in the cases before us confirm the congressional wisdom. For over a century now, statutes have accordingly limited the power of federal appellate courts to review orders remanding cases removed by defendants from state to federal court, see id., at 748-752; Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336, 346-348 (1976). The current incarnation is 28 U. S. C. § 1447(d), which provides that an “order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” In Thermtron, we held that the bar of § 1447(d) applies only to remands based on the grounds specified in § 1447(c), that is, a defect in removal procedure or lack of subject-matter jurisdiction. 423 U. S., at 343-345; see also Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 127-128 (1995). So, we have approved appellate review of a remand expressly based on the District Court’s crowded docket, see Thermtron, supra, at 340-341, and one based on abstention under Burford v. Sun Oil Co., 319 U. S. 315 (1943), see Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 710-712 (1996). But we have relentlessly repeated that “any remand order issued on the grounds specified in § 1447(c) [is immunized from all forms of appellate review], whether or not that order might be deemed erroneous by an appellate court.” Thermtron, 423 U. S., at 351; see also id., at 343 (“If a trial judge purports to remand a case on the ground that it was removed ‘improvidently and without jurisdiction,’ his order is not subject to challenge in the court of appeals” (quoting § 1447(c) (1970 ed.))). The bar of § 1447(d) applies equally to cases removed under the general removal statute, §1441, and to those removed under other provisions, see Things Remembered, supra, at 128, and the force of the bar is not subject to any statutory exception that might cover this case. Ostensibly, then, § 1447(d) stands in the way of reviewing the District Court’s orders of remand in the present cases. The District Court said that it was remanding for lack of jurisdiction, an unreviewable ground, and even if it is permissible to look beyond the court’s own label, the orders are unmistakably premised on the view that removal jurisdiction under 15 U. S. C. § 77p(c) is limited to cases precluded by § 77p(b); on the District Court’s understanding that “holder” claims are not subject to preclusion under §77p(b), the court had no subject-matter jurisdiction. Since there was no indication that removal jurisdiction might exist on some ground other than §77p(c) (complete diversity, for example), the remand orders were necessarily based on the trial court’s conclusion that jurisdiction under § 77p(c) was wanting. And “[wjhere the order is based on one of the [grounds enumerated in 28 U. S. C. § 1447(c)], review is unavailable no matter how plain the legal error in ordering the remand,” Briscoe v. Bell, 432 U. S. 404, 413-414, n. 13 (1977). The Court of Appeals did not, of course, overlook the cases holding that even a remand premised on an erroneous conclusion of no jurisdiction is unappealable; it relied instead on cases like Kontrick v. Ryan, 540 U. S. 443 (2004), and Scarborough v. Principi, 541 U. S. 401 (2004), which observed that some rulings loosely called jurisdictional are patently not jurisdictional in the strict sense, see 373 F. 3d, at 849 (citing Kontrick, supra; Scarborough, supra). The appeals court saw this as such a case; it understood that a district court had removal jurisdiction over any covered action under subsection (c), with the consequence that a subsequent order dismissing because of preclusion under subsection (b), or remanding because the action was not precluded, rested simply on an application of substantive law under subsection (b), law that was not jurisdictional at all. We think, however, that the District Court was correct in understanding its remand order to be dictated by its finding that it lacked removal jurisdiction. Unlike the Court of Appeals, we read authorization for the removal in subsection (c), on which the District Court’s jurisdiction depends, as confined to cases “set forth in subsection (b),” §77p(c), namely, those with claims of untruth, manipulation, and so on. The quoted phrase immediately follows the subsection (c) language describing removable cases as covered class actions involving covered securities, and the language has no apparent function unless it limits removal to covered class actions involving claims like untruth or deception. And legislative history tends to show that this was just what Congress understood. See S. Rep. No. 105-182, p. 8 (1998) (§ 77p(c) “provides that any class action described in Subsection (b) that is brought in a State court shall be removable to Federal district court, and may be dismissed pursuant to the provisions of subsection (b)”); H. R. Rep. No. 105-640, p. 16 (1998) (same). The funds argue that removal jurisdiction is broader by emphasizing the adjective that introduces subsection (c): “Any” covered action. § 77p(c). But that suggestion would be persuasive only if we stopped reading right there, and we do not stop there; we do not read statutes in little bites. And, as just noted, if we did read the removal power that broadly there would be no point to the phrase “as set forth in subsection (b),” for subsection (b) cases would be removable anyway as a subset of covered class actions. Ibid. The funds purport to counter this objection with their argument that on our reading the last phrase of subsection (c) is redundant in providing that removed cases “shall be subject to subsection (b),” since subsection (b) cases would in any event be so subject. Ibid. The funds are in fact right about that redundancy, but the point does not count for their side, because the phrase is redundant on their reading, too: any subsection (b) case removed as falling within the broad category of covered class actions would be treated in accordance with subsection (b) if the subsection applied to that case. In sum, we see no reason to reject the straightforward reading: removal and jurisdiction to deal with removed cases is limited to those precluded by the terms of subsection (b). Once removal jurisdiction under subsection (c) is understood to be restricted to precluded actions defined by subsection (b), a motion to remand claiming the action is not precluded must be seen as posing a jurisdictional issue. If the action is precluded, neither the district court nor the state court may entertain it, and the proper course is to dismiss. If the action is not precluded, the federal court likewise has no jurisdiction to touch the case on the merits, and the proper course is to remand to the state court that can deal with it. In either event, as the Court of Appeals said, the district court’s order comes because its adjudicatory power has been exercised and its work is done. But its adjudicatory power is simply its authority to determine its own jurisdiction to deal further with the case, see United States v. Shipp, 203 U. S. 563, 573 (1906) (opinion for the Court by Holmes, J.) (A federal court “necessarily ha[s] jurisdiction to decide whether the case [is] properly before it”). The work done is jurisdictional, as is the conclusion reached and the order implementing it. III We have yet to deal with one objection to our application of § 1447(d), which if well taken would be a serious one. The Seventh Circuit’s reading of subsection (c) so as to treat the application of the preclusion rule as nonjurisdictional was in part motivated by its assumption that the Act gives federal courts exclusive jurisdiction to decide the preclusion issue. If that is so, and § 1447(d) applies, a remand order based on a finding that an action is not precluded would arguably be immune from review. This is what the funds in effect contend here when they say that a district court’s finding of no subsection (b) preclusion would collaterally estop the state court on remand; the district court would have the last word. And of course the funds’ discomfort is made acute by our recent decision in Dabit, which expressly disavows the district court’s limited view of the scope of subsection (b) preclusion. But a district court does not have the last word on preclusion under the Act, for nothing in the Act gives the federal courts exclusive jurisdiction over preclusion decisions. A covered action is removable if it is precluded, and a defendant can enlist the Federal Judiciary to decide preclusion, but a defendant can elect to leave a case where the plaintiff filed it and trust the state court (an equally competent body, see Missouri Pacific R. Co. v. Fitzgerald, 160 U. S. 556, 583 (1896)) to make the preclusion determination. And what a state court could do in the first place it may also do on remand; in this case, the funds can presently argue the significance of Dabit and ask for dismissal on grounds of preclusion when they return to the state court. Collateral estoppel should be no bar to such a revisitation of the preclusion issue, given that § 1447(d) prevents the funds from appealing the District Court’s decision. See Standefer v. United States, 447 U. S. 10, 23 (1980) (“[Contemporary principles of collateral estoppel . . . strongly militat[e] against giving an [unreviewable judgment] preclusive effect” (citing Restatement (Second) of Judgments § 68.1 (Tent. Draft No. 3, 1976))); see also Restatement (Second) of Judgments § 28(1) (1980) (“Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded [when t]he party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action”). While the state court cannot review the decision to remand in an appellate way, it is perfectly free to reject the remanding court’s reasoning, as we explained over a century ago in Missouri Pacific R. Co.: “[A]s to applications for removal on the ground that the cause arose under the Constitution, laws, or treaties of the United States,” the finality accorded remand orders is appropriate because questions of this character “if decided against the claimant” in state court are “open to revision .. ., irrespective of the ruling of the [federal court] in that regard in the matter of removal.” 160 U. S., at 583. Nor is there any reason to see things differently just because the remand’s basis coincides entirely with the merits of the federal question; it is only the forum designation that is conclusive. Here, we have no reason to doubt that the state court will duly apply Dabit’s holding that holder claims are embraced by subsection (b), but any claim of error on that point can be considered on review by this Court. See Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 12, n. 12 (1983) (“If the state courts reject a claim of federal pre-emption, that decision may ultimately be reviewed on appeal by this Court” (citing Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U. S. 141 (1982))). IV We hold that the Act does not exempt remand orders from 28 U. S. C. § 1447(d) and its general rule of nonappealability. We therefore vacate the judgment of the Court of Appeals and remand the case with instructions to dismiss the appeal for lack of jurisdiction. It is so ordered. “No covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging— “(1) an untrue statement or omission of a material fact in connection with the purchase or sale of a covered security; or “(2) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security.” 112 Stat. 3228 (codified at 15 U. S. C. § 77p(b)). The preclusion provision is often called a preemption provision; the Act, however, does not itself displace state law with federal law but makes some state-law claims nonactionable through the class-action device in federal as well as state court. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, ante, at 87 (“The Act does not deny any individual plaintiff, or indeed any group of fewer than 50 plaintiffs, the right to enforce any state-law cause of action that may exist”). “Any covered class action brought in any State court involving a covered security, as set forth in subsection (b) of this section, shall be removable to the Federal district court for the district in which the action is pending, and shall be subject to subsection (b) of this section.” 112 Stat. 3228 (codified at 15 U. S. C. §77p(c)). The Act amends “in substantially identical ways,” Dabit, ante, at 82, n. 6, both the Securities Act of 1933, 48 Stat. 74, and the Securities Exchange Act of 1934, 48 Stat. 881. For the sake of simplicity, the Seventh Circuit relied exclusively on the amendments to the Securities Act of 1933, and for ease of reference we will do the same. The investors claim that the funds facilitated the practice of “market timing,” whereby traders of mutual fund shares exploit brief discrepancies between the stock prices used to calculate the shares’ value once a day, and the prices at which those stocks are actually trading in the interim. Brief for Petitioners 6. The investors say that market timing is harmful to long-term holders of mutual fund shares and that the funds negligently or recklessly failed to adopt procedures to protect the value of the investors’ long-term investments. As discussed in Part III, infra, we have since rejected this reasoning, see Dabit, ante, at 88-89. Compare 373 F. 3d 847 (CA7 2004) (case below) with Spielman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 332 F. 3d 116 (CA2 2003); Abada v. Charles Schwab & Co., 300 F. 3d 1112 (CA9 2002); Williams v. AFC Enterprises, Inc., 389 F. 3d 1185 (CA11 2004). Title 28 U. S. C. § 1447(d) specifically excepts certain civil rights actions from its bar; ef. § 1443. “Absent a clear statutory command to the contrary, we assume that Congress is aware of the universality of th[e] practice of denying appellate review of remand orders when Congress creates a new ground for removal,” Things Remembered, 516 U. S., at 128 (internal quotation marks omitted), like 15 U. S. C. § 77p(c). Congress has, when it wished, expressly made 28 U. S. C. § 1447(d) inapplicable to particular remand orders. See, e.g., § 1447(d); 12 U. S. C. § 1441a(Z)(3)(C); § 1819(b)(2)(C); 25 U.S.C. § 487(d); cf. n. 7, supra. There is no such “clear statutory command” here, and that silence tells us we must look to 28 U. S. C. § 1447(d) to determine the reviewability of remand orders under the Act. We take a pass on Justice Scalia’s position that we may not look beyond the label, see post, at 650 (opinion concurring in part and concurring in judgment); the result here is the same whether we look near or far. These eases raise exclusively state-law claims seeking damages insufficient to satisfy the amount-in-controversy requirement of 28 U. S. C. § 1332; in those instances in which the funds asserted diversity as a basis for subject-matter jurisdiction, the District Court determined that no named plaintiff had a claim that met § 1332’s $75,000 threshold. See, e. g., Parthasarthy v. T. Rowe Price Int’l Funds, Inc., No. 03-CV-0673-DRH (SD Ill., Jan. 30, 2004), App. to Pet. for Cert. 34a-37a; Spurgeon v. Pacific Life Ins. Co., No. 04-CV-0355-MJR (SD Ill., June 24, 2004), id., at 59a-60a. Like the Court of Appeals here, we said in Dabit that a “key provision of the [Act] makes all ‘covered class actions’ filed in state court removable.” Ante, at 83, n. 7 (quoting 112 Stat. 3230). We sketched the removal provision in broad strokes then because the question of its scope was not before us. Now that it is, we speak more cautiously. The funds argue 15 U. S. C. § 77p confers jurisdiction greater than that necessary to render the preclusion decision, analogizing § 77p(c) to the federal officer removal statute, 28 U. S. C. § 1442(a). If there is any colorable claim that an action is precluded, the argument goes, the district court can keep the case for adjudication, even after concluding on the merits that the state-law claims are not precluded; but because it has discretion to keep the case or remand to state court, a remand is not jurisdictional and hence is reviewable. The argument is flawed for two reasons. The District Court here did not indicate it thought there was any basis to keep the ease for further development; right or wrong, it understood that it was making a jurisdictional ruling. Nor is the analogy with federal officer cases sound. Section 1442(a) is an exception to the “well-pleaded complaint” rule, under which (absent diversity) “a defendant may not remove a case to federal court unless the plaintiff’s complaint establishes that the case ‘arises under’ federal law.” Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 10 (1983) (emphasis deleted). The federal officer removal statute allows “suits against federal officers [to] be removed despite the nonfederal east of the complaint,” Jefferson County v. Acker, 527 U. S. 423, 431 (1999), and reflects a congressional policy that “federal officers, and indeed the Federal Government itself, require the protection of a federal forum,” Willingham v. Morgan, 395 U. S. 402, 407 (1969). An officer’s federal defense need be only color-able to assure the federal court that it has jurisdiction to adjudicate the ease, see Acker, supra, at 431. The funds assert that a preclusion defense need be only colorable as well, but the Act is different. It avails a defendant of a federal forum in contemplation not of further litigation over the merits of a claim brought in state court, but of termination of the proceedings altogether, and a merely colorable claim of preclusion does not satisfy a district court that it may dismiss a case as precluded by the Act. There is no room for such a case to exist in a limbo of colorable preclusion; if a claim is precluded, it “may [not] be maintained,” 15 U. S. C. § 77p(b), and if the claim is not, the federal courts no longer have any business being involved, as there is no longer any federal question on which to moor the district court’s jurisdiction. Nor has Congress expressed in the Act, as it did with 28 U. S. C. § 1442(a), any policy of having particular suits tried in a federal court; there is no indication whatsoever in the Act that, apart from its purpose to preclude certain vexing state-law class actions, Congress intended to add other state-law cases to the federal dockets, and there is no apparent federal interest in spending time on such cases akin to the interest in adjudicating suits against federal officers. The funds suggest, in the alternative, that appellate jurisdiction in this case was proper under Waco v. United States Fidelity & Guaranty Co., 293 U. S. 140 (1934). Without passing on the continued vitality of that case in light of § 1447(d), we note that on its own terms it is distinguishable. In Waco, a case was removed to federal court on an invocation of diversity jurisdiction, id., at 141, and the District Court thereafter “entered a single decree embodying . .. separate orders,” id., at 142. In one order, the District Court dismissed a cross-complaint against one party. In another, the District Court concluded that because of the dismissal there was no diversity of citizenship and it thus lacked jurisdiction, and so it remanded the ease to state court. An appeal was taken from the order of dismissal. This Court determined that the appeal would lie, because “the decree of dismissal preceded that of remand,” and because the District Court’s order of dismissal was conclusive upon the parties. Id., at 143. We noted that a “reversal [of the dismissal] cannot affect the order of remand, but it will at least, if the dismissal . . . was erroneous, remit the entire controversy, with the [previously dismissed party] still a party, to the state court for ... further proceedings.” Id., at 143-144. The order appealed in Waco was not a remand order; the order here is, and thus falls within § 1447(d)’s bar on appeals of “[a]n order remanding a case” to state court. Moreover, the funds do not explain how to reconcile their argument with Waco’s acknowledgment that the order of remand “cannot [be] affect[ed]” notwithstanding any reversal of a separate order, id., at 143. The District Court’s remand order here cannot be disaggregated as the Waco orders could, and if the Seventh Circuit’s preclusion decision stands, there is nothing to remand to state court. Modern usage calls for the descriptive term, “issue preclusion,” in place of “collateral estoppel.” But we are backsliders out of pity for the tired reader; “preclusion” by statutory fiat is enough preclusion for one opinion. The parties further dispute whether the investors’ claims satisfy the other 15 U. S. C. § 77p(b) preclusion prerequisites, particularly the allegation of fraud; the investors take issue with the Seventh Circuit’s characterization of their claims as charging fraud or manipulation, not mismanagement. Because the Court of Appeals lacked appellate jurisdiction, its reading of the investors’ litigation position is not binding in future proceedings and is open to consideration on remand. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Kennedy delivered the opinion of the Court. These eases concern through bills of lading covering cargo for the entire course of shipment, beginning in a foreign, overseas country and continuing to a final, inland destination in the United States. The voyage here included ocean transit followed by transfer to a rail carrier in this country. The Court addressed similar factual circumstances in Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd., 543 U. S. 14 (2004). In that case the terms of a through bill were controlled by federal maritime law and by a federal statute known as the Carriage of Goods by Sea Act (COGSA), note following 46 U. S. C. § 30701. Kirby held that bill of lading provisions permissible under COGSA can be invoked by a domestic rail carrier, despite contrary state law. The instant cases present a question neither raised nor addressed in Kirby. It is whether the terms of a through bill of lading issued abroad by an ocean carrier can apply to the domestic part of the import’s journey by a rail carrier, despite prohibitions or limitations in another federal statute. That statute is known as the Carmack Amendment and it governs the terms of bills of lading issued by domestic rail carriers. 49 U. S. C. § 11706(a). I Respondents Regal-Beloit Corporation, Victory Fireworks, Inc., PICC Property & Casualty Company Ltd., and Royal & Sun Alliance Insurance Company Ltd. are cargo owners or insurance firms that paid losses to cargo owners and succeeded to their rights, all referred to as “cargo owners.” To ship their goods from China to inland destinations in the Midwestern United States, the cargo owners delivered the goods in China to petitioners in No. 08-1553, Kawasaki Kisen Kaisha Ltd., and its agent “K” Line America, Inc., both referred to as “K” Line. All agree the relevant contract terms governing the shipment are contained in four through bills of lading “K” Line issued to the cargo owners. The bills of lading covered the entire course of shipment. The bills required “K” Line to arrange delivery of the goods from China to their final destinations in the United States, by any mode of transportation of “K” Line’s choosing. A bill of lading “records that a carrier has received goods from the party that wishes to ship them, states the terms of carriage, and serves as evidence of the contract for carriage.” Kirby, 543 U. S., at 18-19. A through bill of lading covers both the ocean and inland portions of the transport in a single document. Id., at 25-26. “K” Line’s through bills contain five relevant provisions. First, they include a so-called “Himalaya Clause,” which extends the bills’ defenses and limitations on liability to parties that sign subcontracts to perform services contemplated by the bills. See id., at 20, and n. 2. Second, the bills permit “K” Line “to sub-contract on any terms whatsoever” for the completion of the journey. App. 145. Third, the bills provide that COGSA’s terms govern the entire journey. Fourth, the bills require that any dispute will be governed by Japanese law. Fifth, the bills state that any action relating to the carriage must be brought in “Tokyo District Court in Japan.” Id., at 144. The forum-selection provision in the last clause gives rise to the dispute here. “K” Line, pursuant to the bills of lading, arranged for the entire journey. It subcontracted with petitioner in No. 08-1554, Union Pacific Railroad Company, for rail shipment in the United States. The goods were to be shipped in a “K” Line vessel to a port in Long Beach, California, and then transferred to Union Pacific for rail carriage to the final destinations. In March and April 2005, the cargo owners brought four different container shipments to “K” Line vessels in Chinese ports. All parties seem to assume that “K” Line safely transported the cargo across the Pacific Ocean to California. The containers were then loaded onto a Union Pacific train and that train, or some other train operated by Union Pacific, derailed in Tyrone, Oklahoma, allegedly destroying the cargo. The cargo owners filed four separate lawsuits in the Superior Court of California, County of Los Angeles. The suits named “K” Line and Union Pacific as defendants. Union Pacific removed the suits to the United States District Court for the Central District of California. Union Pacific and “K” Line then moved to dismiss based on the parties’ Tokyo forum-selection clause. The District Court granted the motion to dismiss. It decided that the forum-selection clause was reasonable and applied to Union Pacific pursuant to the Himalaya Clause in “K” Line’s bills of lading. 462 F. Supp. 2d 1098, 1102-1103 (2006). The United States Court of Appeals for the Ninth Circuit reversed and remanded. 557 F. 3d 985 (2009). The court concluded that the Carmack Amendment applied to the inland portion of an international shipment under a through bill of lading and thus trumped the parties’ forum-selection clause. Id., at 994-995. The court noted that this view was consistent with the position taken by the Court of Appeals for the Second Circuit, see id., at 994 (citing Sompo Japan Ins. Co. of Am. v. Union Pacific R. Co., 456 F. 3d 54 (2006)), but inconsistent with the views of the Courts of Appeals for the Fourth, Sixth, Seventh, and Eleventh Circuits, see 557 F. 3d, at 994 (citing Shao v. Link Cargo (Taiwan) Ltd., 986 F. 2d 700 (CA4 1993); American Road Serv. Co. v. Consolidated Rail Corporation, 348 F. 3d 565 (CA6 2003); Capitol Converting Equip., Inc. v. LEP Transp., Inc., 965 F. 2d 391 (CA7 1992); Altadis USA, Inc., ex rel. Fireman’s Fund Ins. Co. v. Sea Star Line, LLC, 458 F. 3d 1288 (CA11 2006)). This Court granted certiorari to address whether Carmack applies to the inland segment of an overseas import shipment under a through bill of lading. 558 U. S. 969 (2009). II A Before turning to Carmack, a brief description of COGSA is in order; for “K” Line’s and Union Pacific’s primary contention is that COGSA, not Carmack, controls. COGSA governs the terms of bills of lading issued by ocean carriers engaged in foreign trade. 49 Stat. 1207, as amended, note following 46 U. S. C. § 30701, p. 1178. It requires each carrier to issue to the cargo owner a bill that contains certain terms. § § 3(3) — (8), at 1178-1179. Although COGSA imposes some limitations on the parties’ authority to adjust liability, it does not limit the parties’ ability to adopt forum-selection clauses. See Vimar Seguros y Reaseguros, S. A. v. M/V Sky Reefer, 515 U. S. 528, 537-539 (1995). By its terms, COGSA only applies to shipments from United States ports to ports of foreign countries and vice versa. §§ 1(e), 13, at 1178, 1180. The statute, however, allows parties “the option of extending [certain COGSA terms] by contract” to cover “the entire period in which [the goods] would be under [a carrier’s] responsibility, including [a] period of... inland transport.” Kirby, 543 U. S., at 29 (citing COGSA §7, at 1180). Ocean carriers, which often must issue COGSA bills of lading, are regulated by the Federal Maritime Commission (Maritime Commission), which is responsible for oversight over “common carriage of goods by water in... foreign commerce.” 46 U. S. C. § 40101(1). B The next statute to consider is the Carmack Amendment, § 7, 34 Stat. 595, which governs the terms of bills of lading issued by domestic rail carriers. Carmack was first enacted in 1906 as an amendment to the Interstate Commerce Act, 24 Stat. 379. The Carmack Amendment has been altered and recodified over the last century. It now provides, in relevant part, as follows: “(a) A rail carrier providing transportation or service subject to the jurisdiction of the [Surface Transportation Board (STB)] under this part shall issue a receipt or bill of lading for property it receives for transportation under this part. That rail carrier and any other carrier that delivers the property and is providing transportation or service subject to the jurisdiction of the [STB] under this part are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this subsection is for the actual loss or injury to the property caused by— “(1) the receiving rail carrier; “(2) the delivering rail carrier; or “(3) another rail carrier over whose line or route the property is transported in the United States or from a place in the United States to a place in an adjacent foreign country when transported under a through bill of lading. “Failure to issue a receipt or bill of lading does not affect the liability of a rail carrier.” 49 U. S. C. § 11706; see also § 14706(a) (motor carriers). The Carmack Amendment thus requires a rail carrier that “receives [property] for transportation under this part” to issue a bill of lading. § 11706(a). The provision “this part” refers to is the STB’s jurisdiction over rail transportation within the United States. See § 10501 (2006 ed. and Supp. II). The STB is the successor to the Interstate Commerce Commission. The STB has “exclusive” jurisdiction to regulate “transportation by rail carrier[s]” between places in the United States as well as between a place in “the United States and a place in a foreign country.” §§ 10501(a)(1), (a)(2)(F), (b) (2006 ed.). Regulated rail carriers must provide transportation subject to STB rail carrier jurisdiction “on reasonable request,” § 11101(a), at reasonable rates, §§ 10702, 10707(b), 11101(a), (e). In cases where it applies, Carmack imposes upon “receiving rail carrier[s]” and “delivering rail carrier[s]” liability for damage caused during the rail route under the bill of lading, regardless of which carrier caused.the damage. § 11706(a). Carmack’s purpose is to relieve cargo owners “of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods.” Reider v. Thompson, 339 U. S. 113, 119 (1950). To help achieve this goal, Carmack constrains carriers’ ability to limit liability by contract. § 11706(c). Carmack also limits the parties’ ability to choose the venue of their suit: “(d)(1) A civil action under this section may be brought in a district court of the United States or in a State court. “(2)(A) A civil action under this section may only be brought— “(i) against the originating rail carrier, in the judicial district in which the point of origin is located; “(ii) against the delivering rail carrier, in the judicial district in which the principal place of business of the person bringing the action is located if the delivering carrier operates a railroad or a route through such judicial district, or in the judicial district in which the point of destination is located; and “(iii) against the carrier alleged to have caused the loss or damage, in the judicial district in which such loss or damage is alleged to have occurred.” § 11706. For purposes of these cases, it can be assumed that if Car-mack’s terms apply to the bills of lading here, the cargo owners would have a substantial argument that the Tokyo forum-selection clause in the bills is pre-empted by Car-mack’s venue provisions. The parties argue about whether they may contract out of Carmack’s venue provisions and other requirements, see §§ 10502, 10709; but in light of the disposition and ruling to follow, those matters need not be discussed or further explored. Ill In Kirby, an ocean shipping company issued a through bill of lading, agreeing to deliver cargo from Australia to Alabama. Like the through bills in the present cases, the Kirby bill extended COGSA’s terms to the inland segment under a Himalaya Clause. There, as here, the property was damaged by a domestic rail carrier during the inland rail portion. 548 U. S., at 19-20. Kirby held that the through bill’s terms governed under federal maritime law, notwithstanding contrary state laws. Id., at 23-27. Kirby explained that “so long as a bill of lading requires substantial carriage of goods by sea, its purpose is to effectuate maritime commerce.” Id., at 27. The Court added that “[ajpplying state law to cases like this one would undermine the uniformity of general maritime law.” Id., at 28. “Confusion and inefficiency will inevitably result if more than one body of law governs a given contract’s meaning.” Id., at 29. The Court noted that its conclusion “reinforce[d] the liability regime Congress established in COGSA,” and explained that COGSA allows parties to extend its terms to an inland portion of a journey under a through bill of lading. Ibid. Finally, the Court concluded that a contrary holding would defeat “the apparent purpose of COGSA, to facilitate efficient contracting in contracts for carriage by sea.” Ibid. Much of what the Court said in Kirby applies to the present cases. “K” Line issued the through bills under COGSA, in maritime commerce. Congress considered such international through bills and decided to permit parties to extend COGSA’s terms to the inland domestic segment of the journey. The cargo owners and “K” Line did exactly that in these cases, agreeing in the through bills to require that any suit be brought in Tokyo. IV The cargo owners argue that the Carmack Amendment, which has its own venue provisions and was not discussed in Kirby, requires a different result. In particular they argue that Carmack applies to the domestic inland segment of the carriage here, so the Tokyo forum-selection clause is inapplicable. For the reasons set forth below, this contention must be rejected. Instructed by the text, history, and purposes of Carmack, the Court now holds that the amendment does not apply to a shipment originating overseas under a single through bill of lading. As in Kirby, the terms of the bill govern the parties’ rights. A The text of the statute charts the analytic course. Car-mack divides the realm of rail carriers into three parts: (1) receiving rail carriers; -(2) delivering rail carriers; and (3) connecting rail carriers. A “receiving rail carrier” is one that “provid[es] transportation or service... for property it receives for transportation under this part.” § 11706(a); see § 11706(a)(1). The provision “this part” refers to is the STB’s jurisdiction over rail transportation within the United States. See § 10501. A “delivering rail carrier” “delivers the property and is providing transportation or service subject to the jurisdiction of the [STB] under this part.” § 11706(a); see § 11706(a)(2). A connecting rail carrier is “another rail carrier over whose line or route the property is transported in the United States or from a place in the United States to a place in an adjacent foreign country when transported under a through bill of lading.” § 11706(a)(3). A rail carrier’s obligation to issue a Carmack-compliant bill of lading is determined by Carmack’s first sentence: “A rail carrier providing transportation or service subject to the jurisdiction of the [STB] under this part shall issue a receipt or bill of lading for property it receives for transportation under this part.” § 11706(a). This critical first sentence requires a Carmack-compliant bill of lading if two conditions are satisfied. First, the rail carrier must “provid[e] transportation or service subject to the jurisdiction of the [STB].” Second, that carrier must “reeeiv[e]” the property “for transportation under this part,” where “this part” is the STB’s jurisdiction over domestic rail transport. Carmack thus requires the receiving rail carrier — but not the delivering or connecting rail carrier — to issue a bill of lading. As explained below, ascertaining the shipment’s point of origin is critical to deciding whether the shipment includes a receiving rail carrier. The conclusion that Carmack’s bill of lading requirement only applies to the receiving rail carrier is dictated by the text and is consistent with this Court’s precedent. See St. Louis, I. M. & S. R. Co. v. Starbird, 248 U. S. 592, 604 (1917) (explaining that Carmack “requires the receiving carrier to issue a through bill of lading”). A receiving rail carrier is the initial carrier, which “receives” the property for domestic rail transportation at the journey’s point of origin. § 11706(a). If Carmack’s bill of lading requirement did not refer to the initial carrier, but rather to any rail carrier that in the colloquial sense “received” the property from another carrier, then every carrier during the shipment would have to issue its own separate bill. This would be altogether contrary to Carmack’s purpose of making the receiving and delivering carriers liable under a single, initial bill of lading for damage caused by any carrier within a single course of shipment. This Court’s decision in Mexican Light & Power Co. v. Texas Mexican R. Co., 331 U. S. 731 (1947), supports the conclusion that only the receiving rail carrier must issue a Car-mack bill of lading. There, a subsequent rail carrier in an export shipment from the United States to Mexico issued its own separate bill of lading at the U. S.-Mexico border. The second bill differed from the through bill issued by the “initial carrier,” id., at 783, (that is, the receiving carrier) at the inland point of origin. The Court held that Carmack, far from requiring nonreceiving carriers to issue their separate bills of lading, makes any subsequent bill “void” unless the “so-called second bill of lading represents the initiation of a new shipment.” Id., at 734. The Court’s decision in Reider, 339 U. S. 113, is not to the contrary. That case involved goods originating in Argentina, bound for an inland location in the United States. The Court in Reider determined that because there was no through bill of lading, the original journey from Argentina terminated at the port of New Orleans. Thus, the first rail carrier in the United States was the receiving rail carrier and had to issue a Carmack bill of lading. Id., at 117. And because that carrier had to issue a separate bill of lading, it was not liable for damage done during the ocean-based portion of the shipment. Id., at 118-119. Notably, neither Mexican Light nor Reider addressed the situation in the present cases, where the shipment originates overseas under a through bill of lading. And, for this reason, neither case discussed COGSA. The Carmack Amendment’s second sentence establishes when Carmack liability applies: “[The receiving rail carrier referred to in the first sentence] and any other carrier that delivers the property and is providing transportation or service subject to the jurisdiction of the [STB] under this part are liable to the person entitled to recover under the receipt or bill of lading.” § 11706(a). Thus, the receiving and delivering rail carriers are subject to liability only when damage is done to this “property,” that is to say, to property for which Carmack’s first sentence requires the receiving rail carrier to issue a bill of lading. Ibid. Put another way, Carmack applies only to transport of property for which. Carmack requires a receiving carrier to issue a bill of lading, regardless of whether that carrier erroneously fails to issue such a bill. See ibid. (“Failure to issue a receipt or bill of lading does not affect the liability of a rail carrier”). The language in some of the Courts of Appeals’ decisions, which were rejected by the Court of Appeals in the opinion now under review, could be read to imply that Carmack applies only if a rail carrier actually issued a separate domestic bill of lading. See, e. g., Altadis, 458 F. 3d, at 1291-1294; American Road, 348 F. 3d, at 568; Shao, 986 F. 2d, at 703; Capitol Converting, 965 F. 2d, at 394. This may have led to some confusion. The decisive question is not whether the rail carrier in fact issued a Carmack bill but rather whether that carrier was required to issue a bill by Carmack’s first sentence. The above principles establish that for Carmack’s provisions to apply the journey must begin with a receiving rail carrier, which would have to issue a Carmack-compliant bill of lading. It follows that Carmack does not apply if the property is received at an overseas location under a through bill that covers the transport into an inland location in the United States. In such a case, there is no receiving rail carrier that “receives” the property “for [domestic rail] transportation,” § 11706(a), and thus no carrier that must issue a Carmack-compliant bill of lading. The initial carrier in that instance receives the property at the shipment’s point of origin for overseas multimodal import transport, not for domestic rail transport. (Today’s decision need not address the instance where goods are received at a point in the United States for export. Nor is it necessary to decide if Carmack applies to goods initially received in Canada or Mexico, for import into the United States. See infra, at 107.) The present cases illustrate the operation of these principles. Carmack did not require “K” Line to issue bills of lading because “K” Line was not a receiving rail carrier. “K” Line obtained the cargo in China for overseas transport across an ocean and then to inland destinations in the United States. “K” Line shipped this property under COGSA-authorized through bills of lading. See supra, at 94-95. That “K” Line chose to use rail transport to complete one segment of the journey under these “essentially maritime” contracts, Kirby, 543 U. S., at 24, does not put “K” Line within Carmack’s reach and thus does not require it to issue Carmack bills of lading. As for Union Pacific, it was also not a receiving rail carrier under Carmack. The cargo owners conceded at oral argument that, even under their theory, Union Pacific was a mere delivering carrier, which did not have to issue its own Car-mack bill of lading. See Tr. of Oral Arg. 29, 39. This was a necessary concession. A carrier does not become a receiving carrier simply by accepting goods for further transport from another carrier in the middle of an international shipment under a through bill. After all, Union Pacific was not the “initial carrier” for the carriage. Mexican Light, 331 U. S., at 733. If a carrier like Union Pacific, which acts as a connecting or delivering carrier during an international through shipment, was, counterintuitively, a receiving carrier under Carmack, this would in effect outlaw through shipments under a single bill of lading. This is because a carriage like the one in the present case would require two bills of lading: one that the overseas carrier (here, “K” Line) issues to the cargo owners under COGSA, and a second one that the first domestic rail carrier (here, Union Pacific) issues to the overseas carrier under Carmack. Kirby noted “the popularity of Through’ bills of lading, in which cargo owners can contract for transportation across oceans and to inland destinations in a single transaction.” 543 U. S., at 25-26. The Court sees no reason to read COGSA and Carmack to outlaw this efficient mode of international shipping by requiring these journeys to have multiple bills of lading. In addition, if Union Pacific had to issue a Carmack bill of lading to “K” Line, it is unclear whether the cargo owners (the parties Carmack is designed to protect) would be able to sue under the terms governing that bill, especially in light of their different through bill with “K” Line. These difficulties are reason enough to reject this novel interpretation of Car-mack, which was neither urged' by any party nor adopted by any authority that has been called to this Court’s attention. This would be a quite different case if, as in Reider, the bills of lading for the overseas transport ended at this country’s ports and the cargo owners then contracted with Union Pacific to complete a new journey to an inland destination in the United States. Under those circumstances, Union Pacific would have been the receiving rail carrier and would have been required to issue a separate Carmack-compliant bill of lading to the cargo owners. See Reider, 339 U. S., at 117 (“If the various parties dealing with this shipment separated the carriage into distinct portions by their contracts, it is not for courts judicially to meld the portions into something they are not”). The Court of Appeals interpreted Carmack as applying to any domestic rail segment of an overseas shipment, regardless of whether Carmack required a bill of lading. The court rested on the assumption that the “[STB]’s jurisdiction... is coextensive with Carmack’s coverage.” 557 F. 3d, at 992. Yet, as explained above, Carmack applies only to shipments for which Carmack requires a bill of lading; that is to say, to shipments that start with a carrier that is both subject to the STB’s jurisdiction and “receives [the property] for [domestic rail] transportation.” The Court of Appeals ignored this “receive[d]... for transportation” limitation and so reached the wrong conclusion. See, e. g., Reiter v. Sonotone Corp., 442 U. S. 330, 339 (1979) (courts are “obliged to give effect, if possible, to every word Congress used”). The Court of Appeals’ conclusion is also an awkward fit with Carmack’s venue provisions. Under Carmack, a suit against the “originating” (that is, receiving) rail carrier that has not actually caused the damage to the goods “may only be brought... in the judicial district in which the point of origin is located.” §§ 11706(d)(2)(A), (A)(i). Suit against either a delivering carrier or any carrier that caused the damage, by contrast, may be brought in various other districts. See §§ 11706(d)(2)(B), (C). “[Jjudicial district” refers to “district court of the United States or in a State Court.” § 11706(d)(1). Carmack’s venue provisions presume that the receiving carrier obtains the property in a judicial district within the United States. Here, the journey’s “point of origin” was China, so Carmack’s venue provisions reinforce the interpretation that Carmack does not apply to this carriage. Indeed, if “K” Line were a receiving carrier in a case where the journey’s “point of origin” was China, there would be no place under Carmack to sue “K” Line, since China is not within a judicial district “of the United States or in a State court.” Ibid. Carmack’s original premise is that the receiving carrier is liable for damage caused by the other carriers in the delivery chain. This premise would be defeated if there were no venue in which to sue the receiving rail carrier, as opposed to suing a different carrier under one of Carmack’s other venue provisions and then naming the receiving carrier as a codefendant. The far more likely conclusion is that “K” Line is not a receiving rail carrier at all under Carmack, and thus Carmack, including its venue provisions, does not apply to property shipped under “K” Line’s through bills. True, if the sole question were one of venue, suit could still be brought against the carrier that caused the damage or the delivering carrier. But the issue need not be explored here, for, as the Court holds, Carmack is inapplicable in these cases. B Carmack’s statutory history supports the conclusion that it does not apply to a shipment originating overseas under a through bill. None of Carmack’s legislative versions have applied to the inland domestic rail segment of an import shipment from overseas under a through bill. Congress enacted Carmack in 1906, as an amendment to the Interstate Commerce Act. At that time, the amendment’s provisions applied only to “property for transportation from a point in one State to a point in another State.” § 7, 34 Stat. 595. Congress amended Carmack in 1915, § 1, 38 Stat. 1197, and the relevant language remained unchanged until Carmack was recodified in 1978. Under the pre-1978 language, Carmack’s bill of lading provisions applied not only to wholly domestic rail transport but also to cargo “received]... for transportation” “from any point in the United States to a point in an adjacent foreign country.” 49 U. S. C. §20(11) (1976 ed.). Even if there could be some argument that the Carmack Amendment before 1978 applied to imports from Canada and Mexico because the phrase “from... to” could also mean “between,” cf. Reider, supra, at 118 (explicitly not deciding this issue), the Court is unaware of any authority holding that the Carmack Amendment before 1978 applied to cargo originating from nonadjacent overseas countries under a through bill. See, e. g., In re The Cummins Amendment, 33 I. C. C. 682, 693 (1915); Brief for Respondents 8 (effectively conceding this point). In 1978, Congress adopted the Carmack Amendment in largely its current form. § 1, 92 Stat. 1337. Congress in the statute itself stated that it was recodifying Carmack and instructed that this recodification “may not be construed as making a substantive change in the la[w].” §3(a), id., at 1466; see Burlington Northern R. Co. v. Oklahoma Tax Comm’n, 481 U. S. 454, 457, n. 1 (1987). By interpreting the current version of the Carmack Amendment to cover cargo originating overseas, the Court of Appeals disregarded this direction and dramatically expanded Carmack’s scope beyond its historical coverage. Finally, in 1995, Congress reenacted Carmack. But that reenactment evidenced no intent to affect the substantive change that the Court of Appeals’ decision would entail. See § 102(a), 109 Stat. 847-849. There is no claim that the 1995 statute altered Carmack’s text in any manner relevant here, as that reenactment merely indented subsections of Carmack for readability. Cf. United States v. O’Brien, 560 U. S. 218, 233-234 (2010) (“[C]urrent legislative drafting guidelines... advise drafters to break lengthy statutory provisions into separate subsections that can be read more easily”). C Where the text permits, congressional enactments should be construed to be consistent with one another. And the interpretation of Carmack the Court now adopts attains the most consistency between Carmack and COGSA. First, applying Carmack to the inland segment of an international carriage originating overseas under a through bill would undermine Carmack’s purposes. Carmack is premised on the view that the shipment has a single bill of lading and any damage during the journey is the responsibility of both the receiving and the delivering carrier. See supra, at 98. Yet, under the Court of Appeals’ interpretation of Carmack, there would often be no venue in which to sue the receiving carrier. See supra, at 106. Applying two different bill of lading regimes to the same through shipment would undermine COGSA and international, container-based multimodal transport. As Kirby explained, “[t]he international transportation industry 'clearly has moved into a new era — the age of multimodalism, door-to-door transport based on efficient use of all available modes of transportation by air, water, and land.’ ” 543 U. S., at 25 (quoting 1 T. Sehoenbaum, Admiralty and Maritime Law 589 (4th ed. 2004)). If Carmack applied to an inland segment of a shipment from overseas under a through bill, then one set of liability and venue rules would apply when cargo is damaged at sea (COGSA) and another almost always would apply when the damage occurs on land (Carmack). Rather than making claims by cargo owners easier to resolve, a court would have to decide where the damage occurred to determine which law applied. As a practical matter, this requirement often could not be met; for damage to the content of containers can occur when the contents are damaged by rough handling, seepage, or theft, at some unknown point. See H. Kindred & M. Brooks, Multimodal Transport Rules 143 (1997). Indeed, adopting the Court of Appeals’ approach would seem to require rail carriers to open containers at the port to check if damage has been done during the sea voyage. This disruption would undermine international container-based transport. The Court will not read Congress’ nonsubstantive recodification of Carmack in 1978 to create such a drastic sea change in practice in this area. Applying Carmack’s provisions to international import shipping transport would also undermine the “purpose of COGSA, to facilitate efficient contracting in contracts for carriage by sea.” Kirby, supra, at 29. These cases provide an apt illustration. The sophisticated cargo owners here agreed to maritime bills of lading that applied to the inland segment through the Himalaya Clause and authorized “K” Line to subcontract for that inland segment “on any terms whatsoever.” The cargo owners thus made the decision to select “K” Line as a single company for their through transportation needs, rather than contracting for rail services themselves. The through bills provided the liability and venue rules for the foreseeable event that the cargo was damaged during carriage. Indeed, the cargo owners obtained separate insurance to protect against any excess loss. The forum-selection clause the parties agreed upon is “an indispensable element in international trade, commerce, and contracting” because it allows parties to “agre[e] in advance on a forum acceptable” to them. The Bremen v. Zapata Off-Shore Co., 407 U. S. 1, 13-14 (1972). A clause of this kind is enforced unless it imposes a venue “so gravely difficult and inconvenient that [the plaintiff] will for all practical purposes be deprived of his day in court.” Id., at 18. The parties sensibly agreed that because their bills were governed by Japanese law, Tokyo would be the best venue for any suit relating to the cargo. The cargo owners’ contrary policy arguments are unavailing. They assert that if Carmack does not apply, the inland segment of international shipments will be “unregulated.” Brief for Respondents 2, 21, 24, 64, 91. First, Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Marshall delivered the opinion of the Court. The issue in this case is whether the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the offense is seriously in question. I Late in 1979, Glen Burton Ake was arrested and charged with murdering a couple and wounding their two children. He was arraigned in the District Court for Canadian County, Okla., in February 1980. His behavior at arraignment, and in other prearraignment incidents at the jail, was so bizarre that the trial judge, sua sponte, ordered him to be examined by a psychiatrist “for the purpose of advising with the Court as to his impressions of whether the Defendant may need an extended period of mental observation.” App. 2. The examining psychiatrist reported: “At times [Ake] appears to be frankly delusional.... He claims to be the ‘sword of vengeance’ of the Lord and that he will sit at the left hand of God in heaven.” Id., at 8. He diagnosed Ake as a probable paranoid schizophrenic and recommended a prolonged psychiatric evaluation to determine whether Ake was competent to stand trial. In March, Ake was committed to a state hospital to be examined with respect to his “present sanity,” i. e., his competency to stand trial. On April 10, less than six months after the incidents for which Ake was indicted, the chief forensic psychiatrist at the state hospital informed the court that Ake was not competent to stand trial. The court then held a competency hearing, at which a psychiatrist testified: “[Ake] is a psychotic... his psychiatric diagnosis was that of paranoid schizophrenia — chronic, with exacerbation, that is with current upset, and that in addition... he is dangerous.... [B]ecause of the severity of his mental illness and because of the intensities of his rage, his poor control, his delusions, he requires a maximum security facility within — I believe — the State Psychiatric Hospital system.” Id., at 11-12. The court found Ake to be a “mentally ill person in need of care and treatment” and incompetent to stand trial, and ordered him committed to the state mental hospital. Six weeks later, the chief forensic psychiatrist informed the court that Ake had become competent to stand trial. At the time, Ake was receiving 200 milligrams of Thorazine, an antipsychotic drug, three times daily, and the psychiatrist indicated that, if Ake continued to receive that dosage, his condition would remain stable. The State then resumed proceedings against Ake. At a pretrial conference in June, Ake’s attorney informed the court that his client would raise an insanity defense. To enable him to prepare and present such a defense adequately, the attorney stated, a psychiatrist would have to examine Ake with respect to his mental condition at the time of the offense. During Ake’s 3-month stay at the state hospital, no inquiry had been made into his sanity at the time of the offense, and, as an indigent, Ake could not afford to pay for a psychiatrist. Counsel asked the court either to arrange to have a psychiatrist perform the examination, or to provide funds to allow the defense to arrange one. The trial judge rejected counsel’s argument that the Federal Constitution requires that an indigent defendant receive the assistance of a psychiatrist when that assistance is necessary to the defense, and he denied the motion for a psychiatric evaluation at state expense on the basis of this Court’s decision in United States ex rel. Smith v. Baldi, 344 U. S. 561 (1953). Ake was tried for two counts of murder in the first degree, a crime punishable by death in Oklahoma, and for two counts of shooting with intent to kill. At the guilt phase of trial, his sole defense was insanity. Although defense counsel called to the stand and questioned each of the psychiatrists who had examined Ake at the state hospital, none testified about his mental state at the time of the offense because none had examined him on that point. The prosecution,- in turn, asked each of these psychiatrists whether he had performed or seen the results of any examination diagnosing Ake’s mental state at the time of the offense, and each doctor replied that he had not. As a result, there was no expert testimony for either side on Ake’s sanity at the time of the offense. The jurors were then instructed that Ake could be found not guilty by reason of insanity if he did not have the ability to distinguish right from wrong at the time of the alleged offense. They were farther told that Ake was to be presumed sane at the time of the crime unless he presented evidence sufficient to raise a reasonable doubt about his sanity at that time. If he raised such a doubt in their minds, the jurors were informed, the burden of proof shifted to the State to prove sanity beyond a reasonable doubt. The jury rejected Ake’s insanity defense and returned a verdict of guilty on all counts. At the sentencing proceeding, the State asked for the death penalty. No new evidence was presented. The prosecutor relied significantly on the testimony of the state psychiatrists who had examined Ake, and who had testified at the guilt phase that Ake was dangerous to society, to establish the likelihood of his future dangerous behavior. Ake had no expert witness to rebut this testimony or to introduce on his behalf evidence in mitigation of his punishment. The jury sentenced Ake to death on each of the two murder counts, and to 500 years’ imprisonment on each of the two counts of shooting with intent to kill. On appeal to the Oklahoma Court of Criminal Appeals, Ake argued that, as an indigent defendant, he should have been provided the services of a court-appointed psychiatrist. The court rejected this argument, observing: “We have held numerous times that, the unique nature of capital cases notwithstanding, the State does not have the responsibility of providing such services to indigents charged with capital crimes.” 663 P. 2d 1, 6 (1983). Finding no error in Ake’s other claims, the court affirmed the convictions and sentences. We granted certiorari. 465 U. S. 1099 (1984). We hold that when a defendant has made a preliminary-showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on this issue if the defendant cannot otherwise afford one. Accordingly, we reverse. II Initially, we must address our jurisdiction to review this case. After ruling on the merits of Ake’s claim, the Oklahoma court observed that in his motion for a new trial Ake had not repeated his request for a psychiatrist and that the claim was thereby waived. 663 P. 2d, at 6. The court cited Hawkins v. State, 569 P. 2d 490 (Okla. Crim. App. 1977), for this proposition. The State argued in its brief to this Court that the court’s holding on this issue therefore rested on an adequate and independent state ground and ought not be reviewed. Despite the court’s state-law ruling, we conclude that the state court’s judgment does not rest on an independent state ground and that our jurisdiction is therefore properly exercised. The Oklahoma waiver rule does not apply to fundamental trial error. See Hawkins v. State, supra, at 493; Gaddis v. State, 447 P. 2d 42, 45-46 (Okla. Crim. App. 1968). Under Oklahoma law, and as the State conceded at oral argument, federal constitutional errors are “fundamental.” Tr. of Oral Arg. 51-52; see Buchanan v. State, 523 P. 2d 1134, 1137 (Okla. Crim. App. 1974) (violation of constitutional right constitutes fundamental error); see also Williams v. State, 658 P. 2d 499 (Okla. Crim. App. 1983). Thus, the State has made application of the procedural bar depend on an antecedent ruling on federal law, that is, on the determination of whether federal constitutional error has been committed. Before applying the waiver doctrine to a constitutional question, the state court must rule, either explicitly or implicitly, on the merits of the constitutional question. As we have indicated in the past, when resolution of the state procedural law question depends on a federal constitutional ruling, the state-law prong of the court’s holding is not independent of federal law, and our jurisdiction is not precluded. See Herb v. Pitcairn, 324 U. S. 117, 126 (1945) (“We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of Federal laws, our review could amount to nothing more than an advisory opinion”); Enterprise Irrigation District v. Farmers Mutual Canal Co., 243 U. S. 157, 164 (1917) (“But where the non-Federal ground is so interwoven with the other as not to be an independent matter, or is not of sufficient breadth to sustain the judgment without any decision of the other, our jurisdiction is plain”). In such a case, the federal-law holding is integral to the state court’s disposition of the matter, and our ruling on the issue is in no respect advisory. In this case, the additional holding of the state court — that the constitutional challenge presented here was waived — depends on the court’s federal-law ruling and consequently does not present an independent state ground for the decision rendered. We therefore turn to a consideration of the merits of Ake’s claim. This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake. In recognition of this right, this Court held almost 30 years ago that once a State offers to criminal defendants the opportunity to appeal their cases, it must provide a trial transcript to an indigent defendant if the transcript is necessary to a decision on the merits of the appeal. Griffin v. Illinois, 351 U. S. 12 (1956). Since then, this Court has held that an indigent defendant may not be required to pay a fee before filing a notice of appeal of his conviction, Burns v. Ohio, 360 U. S. 252 (1959), that an indigent defendant is entitled to the assistance of counsel at trial, Gideon v. Wainwright, 372 U. S. 335 (1963), and on his first direct appeal as of right, Douglas v. California, 372 U. S. 353 (1963), and that such assistance must be effective. See Evitts v. Lucey, 469 U. S. 387 (1985); Strickland v. Washington, 466 U. S. 668 (1984); McMann v. Richardson, 397 U. S. 759, 771, n. 14 (1970). Indeed, in. Little v. Streater, 452 U. S. 1 (1981), we extended this principle of meaningful participation to a “quasi-criminal” proceeding and held that, in a paternity action, the State cannot deny the putative father blood grouping tests, if he cannot otherwise afford them. h-H hH I — I Meaningful access to justice has been the consistent theme of these cases. We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. Thus, while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, see Ross v. Moffitt, 417 U. S. 600 (1974), it has often reaffirmed that fundamental fairness entitles indigent defendants to “an adequate opportunity to present their claims fairly within the adversary system,” id., at 612. To implement this principle, we have focused on identifying the “basic tools of an adequate defense or appeal,” Britt v. North Carolina, 404 U. S. 226, 227 (1971), and we have required that such tools be provided to those defendants who cannot afford to pay for them. To say that these basic tools must be provided is, of course, merely to begin our inquiry. In this case we must decide whether, and under what conditions, the participation of a psychiatrist is important enough to preparation of a defense to require the State to provide an indigent defendant with access to competent psychiatric assistance in preparing the defense. Three factors are relevant to this determination. The first is the private interest that will be affected by the action of the State. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. See Little v. Streater, supra, at 6; Mathews v. Eldridge, 424 U. S. 319, 335 (1976). We turn, then, to apply this standard to the issue before us. A The private interest in the accuracy of a criminal proceeding that places an individual’s life or liberty at risk is almost uniquely compelling. Indeed, the host of safeguards fashioned by this Court over the years to diminish the risk of erroneous conviction stands as a testament to that concern. The interest of the individual in the outcome of the State’s effort to overcome the presumption of innocence is obvious and weighs heavily in our analysis. We consider, next, the interest of the State. Oklahoma asserts that to provide Ake with psychiatric assistance on the record before us would result in a staggering burden to the State. Brief for Respondent 46-47. We are unpersuaded by this assertion. Many States, as well as the Federal Government, currently make psychiatric assistance available to indigent defendants, and they have not found the financial burden so great as to preclude this assistance. This is especially so when the obligation of the State is limited to provision of one competent psychiatrist, as it is in many States, and as we limit the right we recognize today. At the same time, it is difficult to identify any interest of the State, other than that in its economy, that weighs against recognition of this right. The State’s interest in prevailing at trial— unlike that of a private litigant — is necessarily tempered by its interest in the fair and accurate adjudication of criminal cases. Thus, also unlike a private litigant, a State may not legitimately assert an interest in maintenance of a strategic advantage over the defense, if the result of that advantage is to cast a pall on the accuracy of the verdict obtained. We therefore conclude that the governmental interest in denying Ake the assistance of a psychiatrist is not substantial, in light of the compelling interest of both the State and the individual in accurate dispositions. Last, we inquire into the probable value of the psychiatric assistance sought, and the risk of error in the proceeding if such assistance is not offered. We begin by considering the pivotal role that psychiatry has come to play in criminal proceedings. More than 40 States, as well as the Federal Government, have decided either through legislation or judicial decision that indigent defendants are entitled, under certain circumstances, to the assistance of a psychiatrist’s expertise. For example, in subsection (e) of the Criminal Justice Act, 18 U. S. C. § 3006A, Congress has provided that indigent defendants shall receive the assistance of all experts “necessary for an adequate defense.” Numerous state statutes guarantee reimbursement for expert services under a like standard. And in many States that have not assured access to psychiatrists through the legislative process, state courts have interpreted the State or Federal Constitution to require that psychiatric assistance be provided to indigent defendants when necessary for an adequate defense, or when insanity is at issue. These statutes and court decisions reflect a reality that we recognize today, namely, that when the State has made the defendant’s mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant’s ability to marshal his defense. In this role, psychiatrists gather facts, through professional examination, interviews, and elsewhere, that they will share with the judge or jury; they analyze the information gathered and from it draw plausible conclusions about the defendant’s mental condition, and about the effects of any disorder on behavior; and they offer opinions about how the defendant’s mental condition might have affected his behavior at the time in question. They know the probative questions to ask of the opposing party’s psychiatrists and how to interpret their answers. Unlike lay witnesses, who can merely describe symptoms they believe might be relevant to the defendant’s mental state, psychiatrists can identify the “elusive and often deceptive” symptoms of insanity, Solesbee v. Balkcom, 339 U. S. 9, 12 (1950), and tell the jury why their observations are relevant. Further, where permitted by evidentiary rules, psychiatrists can translate a medical diagnosis into language that will assist the trier of fact, and therefore offer evidence in a form that has meaning for the task at hand. Through this process of investigation, interpretation, and testimony, psychiatrists ideally assist lay jurors, who generally have no training in psychiatric matters, to make a sensible and educated determination about the mental condition of the defendant at the time of the offense. Psychiatry is not, however, an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, on cure and treatment, and on likelihood of future dangerousness. Perhaps because there often is no single, accurate psychiatric conclusion on legal insanity in a given case, juries remain the primary factfinders on this issue, and they must resolve differences in opinion within the psychiatric profession on the basis of the evidence offered by each party. When jurors make this determination about issues that inevitably are complex and foreign, the testimony of psychiatrists can be crucial and “a virtual necessity if an insanity plea is to have any chance of success.” By organizing a defendant’s mental history, examination results and behavior, and other information, interpreting it in light of their expertise, and then laying out their investigative and analytic process to the jury, the psychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them. It is for this reason that States rely on psychiatrists as examiners, consultants, and witnesses, and that private individuals do as well, when they can afford to do so. In so saying, we neither approve nor disapprove the widespread reliance on psychiatrists but instead recognize the unfairness of a contrary holding in light of the evolving practice. The foregoing leads inexorably to the conclusion that, without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high. With such assistance, the defendant is fairly able to present at least enough information to the jury, in a meaningful manner, as to permit it to make a sensible determination. A defendant’s mental condition is not necessarily at issue in every criminal proceeding, however, and it is unlikely that psychiatric assistance of the kind we have described would be of probable value in cases where it is not. The risk of error from denial of such assistance, as well as its probable value, is most predictably at its height when the defendant’s mental condition is seriously in question. When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent. It is in such cases that a defense may be devastated by the absence of a psychiatric examination and testimony; with such assistance, the defendant might have a reasonable chance of success. In such a circumstance, where the potential accuracy of the jury’s determination is so dramatically enhanced, and where the interests of the individual and the State in an accurate proceeding are substantial, the State’s interest in its fisc must yield. We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the States the decision on how to implement this right. B Ake also was denied the means of presenting evidence to rebut the State’s evidence of his future dangerousness. The foregoing discussion compels a similar conclusion in the context of a capital sentencing proceeding, when the State presents psychiatric evidence of the defendant’s future, dangerousness. We have repeatedly recognized the defendant’s compelling interest in fair adjudication at the sentencing phase of a capital case. The State, too, has a profound interest in assuring that its ultimate sanction is not erroneously imposed, and we do not see why monetary considerations should be more persuasive in this context than at trial. The variable on which we must focus is, therefore, the probable value that the assistance of a psychiatrist will have in this area, and the risk attendant on its absence. This Court has upheld the practice in many States of placing before the jury psychiatric testimony on the question of future dangerousness, see Barefoot v. Estelle, 463 U. S. 880, 896-905 (1983), at least where the defendant has had access to an expert of his own, id., at 899, n. 5. In so holding, the Court relied, in part, on the assumption that the factfinder would have before it both the views of the prosecutor’s psychiatrists and the “opposing views of the defendant’s doctors” and would therefore be competent to “uncover, recognize, and take due account of... shortcomings” in predictions on this point. Id., at 899. Without a psychiatrist’s assistance, the defendant cannot offer a well-informed expert’s opposing view, and thereby loses a significant opportunity to raise in the jurors’ minds questions about the State’s proof of an aggravating factor. In such a circumstance, where the consequence of error is so great, the relevance of responsive psychiatric testimony so evident, and the burden on the State so slim, due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase. C The trial court in this case believed that our decision in United States ex rel. Smith v. Baldi, 344 U. S. 561 (1953), absolved it completely of the obligation to provide access to a psychiatrist. For two reasons, we disagree. First, neither Smith, nor McGarty v. O’Brien, 188 F. 2d 151, 155 (CA1 1951), to which the majority cited in Smith, even suggested that the Constitution does not require any psychiatric examination or assistance whatsoever. Quite to the contrary, the record in Smith demonstrated that neutral psychiatrists in fact had examined the defendant as to his sanity and had testified on that subject at trial, and it was on that basis that the Court found no additional assistance was necessary. Smith, supra, at 568; see also United States ex rel. Smith v. Baldi, 192 F. 2d 540, 547 (CA3 1951). Similarly, in McGarty, the defendant had been examined by two psychiatrists who were not beholden to the prosecution. We therefore reject the State’s contention that Smith supports the broad proposition that “[t]here is presently no constitutional right to have a psychiatric examination of a defendant’s sanity at the time of the offense.” Brief in Opposition 8. At most it supports the proposition that there is no constitutional right to more psychiatric assistance than the defendant in Smith had received. In any event, our disagreement with the State’s reliance on Smith is more fundamental. That case was decided at a time when indigent defendants in state courts had no constitutional right to even the presence of counsel. Our recognition since then of elemental constitutional rights, each of which has enhanced the ability of an indigent defendant to attain a fair hearing, has signaled our increased commitment to assuring meaningful access to the judicial process. Also, neither trial practice nor legislative treatment of the role of insanity in the criminal process sits paralyzed simply because this Court has once addressed them, and we would surely be remiss to ignore the extraordinarily enhanced role of psychiatry in criminal law today. Shifts in all these areas since the time of Smith convince us that the opinion in that case was addressed to altogether different variables, and that we are not limited by it in considering whether fundamental fairness today requires a different result. < We turn now to apply these standards to the facts of this case. On the record before us, it is clear that Ake’s mental state at the time of the offense was a substantial factor in his defense, and that the trial court was on notice of that fact when the request for a court-appointed psychiatrist was made. For one, Ake’s sole defense was that of insanity. Second, Ake’s behavior at arraignment, just four months after the offense, was so bizarre as to prompt the trial judge, sua sponte, to have him examined for competency. Third, a state psychiatrist shortly thereafter found Ake to be incompetent to stand trial, and suggested that he be committed. Fourth, when he was found to be competent six weeks later, it was only on the condition that he be sedated with large doses of Thorazine three times a day, during trial. Fifth, the psychiatrists who examined Ake for competency described to the trial court the severity of Ake’s mental illness less than six months after the offense in question, and suggested that this mental illness might have begun many years earlier. App. 35. Finally, Oklahoma recognizes a defense of insanity, under which the initial burden of producing evidence falls on the defendant. Taken together, these factors make clear that the question of Ake’s sanity was likely to be a significant factor in his defense. In addition, Ake’s future dangerousness was a significant factor at the sentencing phase. The state psychiatrist who treated Ake at the state mental hospital testified at the guilt phase that, because of his mental illness, Ake posed a threat of continuing criminal violence. This testimony raised the issue of Ake’s future dangerousness, which is an aggravating factor under Oklahoma’s capital sentencing scheme, Okla. Stat., Tit. 21, §701.12(7) (1981), and on which the prosecutor relied at sentencing. We therefore conclude that Ake also was entitled to the assistance of a psychiatrist on this issue and that the denial of that assistance deprived him of due process. Accordingly, we reverse and remand for a new trial. It is so ordered. Oklahoma Stat., Tit. 21, §152 (1981), provides that “[a]ll persons are capable of committing crimes, except those belonging to the following classes... (4) Lunatics, insane persons and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness.” The Oklahoma Court of Criminal Appeals has held that there is an initial presumption of sanity in every case, “which remains until the defendant raises, by sufficient evidence, a reasonable doubt as to his sanity at the time of the crime. If the issue is so raised, the burden of proving the defendant’s sanity beyond a reasonable doubt falls upon the State.” 663 P. 2d 1, 10 (1983) (case below); see also Rogers v. State, 634 P. 2d 743 (Okla. Crim. App. 1981). The Oklahoma Court of Criminal Appeals also dismissed Ake’s claim that the Thorazine he was given during trial rendered him unable to understand the proceedings against him or to assist counsel with his defense. The court acknowledged that Ake “stared vacantly ahead throughout the trial” but rejected Ake’s challenge in reliance on a state psychiatrist’s word that Ake was competent to stand trial while under the influence of the drug. 663 P. 2d, at 7-8, and n. 5. Ake petitioned for a writ of certiorari on this issue as well. In light of our disposition of the other issues presented, we need not address this claim. This Court has recently discussed the role that due process has played in such cases, and the separate but related inquiries that due process and equal protection must trigger. See Evitts v. Lucey; Bearden v. Georgia, 461 U. S. 660 (1983). See Ala. Code §15-12-21 (Supp. 1984); Alaska Stat. Ann. §18.85.100 (1981); Ariz. Rev. Stat. Ann. § 13-4013 (1978) (capital cases; extended to noncapital cases in State v. Peeler, 126 Ariz. 254, 614 P. 2d 335 (App. 1980)); Ark. Stat. Ann. § 17-456 (Supp. 1983); Cal. Penal Code Ann. § 987.9 (West Supp. 1984) (capital cases; right recognized in all cases in People v. Worthy, 109 Cal. App. 3d 514, 167 Cal. Rptr. 402 (1980)); Colo. Rev. Stat. § 18-1-403 (Supp. 1984); State v. Clemons, 168 Conn. 395, 363 A. 2d 33 (1975); Del. Code Ann., Tit. 29, § 4603 (1983); Fla. Rule Crim. Proc. 3.216; Haw. Rev. Stat. § 802-7 (Supp. 1983); State v. Olin, 103 Idaho 391, 648 P. 2d 203 (1982); People v. Watson, 36 Ill. 2d 228, 221 N. E. 2d 645 (1966); Owen v. State, 272 Ind. 122, 396 N. E. 2d 376 (1979) (trial judge may authorize or appoint experts where necessary); Iowa Rule Crim. Proc. 19; Kan. Stat. Ann. §22-4508 (Supp. 1983); Ky. Rev. Stat. §§31.070, 31.110, 31.185 (1980); State v. Madison, 345 So. 2d 485 (La. 1977); State v. Anaya, 456 A. 2d 1255 (Me. 1983); Mass. Gen. Laws Ann., ch. 261, §27C(4) (West Supp. 1984-1985); Mich. Comp. Laws Ann. §768.20a(3) (Supp. 1983); Minn. Stat. §611.21 (1982); Miss. Code Ann. §99-15-17 (Supp. 1983); Mo. Rev. Stat. §552.030.4 (Supp. 1984); Mont. Code Ann. §46-8-201 (1983); State v. Suggett, 200 Neb. 693, 264 N. W. 2d 876 (1978) (discretion to appoint psychiatrist rests with trial court); Nev. Rev. Stat. §7.135 (1983); N. H. Rev. Stat. Ann. §604-A:6 (Supp. 1983); N. M. Stat. Ann. §§ 31-16-2, 31-16-8 (1984); N. Y. County Law § 722-c (McKinney Supp. 1984-1985); N. C. Gen. Stat. § 7A-454 (1981); Ohio Rev. Code Ann. §2941.51 (Supp. 1983); Ore. Rev. Stat. §_135.055(4) (1983); Commonwealth v. Gelormo, 327 Pa. Super. 219, 227, and n. 5, 475 A. 2d 765, 769, and n. 5 (1984); R. I. Gen. Laws §9-17-19 (Supp. 1984); S. C. Code §17-3-80 (Supp. 1983); S. D. Codified Laws § 23A-40-8 (Supp. 1984); Tenn. Code Ann. §40-14-207 (Supp. 1984); Tex. Code Crim. Proc. Ann., Art. §26.05 (Vernon Supp. 1984); Utah Code Ann. § 77-32-1 (1982); Wash. Rev. Code §§ 10.77.020, 10.77.060 (1983) (see also State v. Cunningham, 18 Wash. App. 517, 569 P. 2d 1211 (1977)); W. Va. Code § 29-21-14(e)(3) (Supp. 1984); Wyo. Stat. §§ 7-1-108; 7-1-110; 7-1-116 (1977). See n. 4, supra. Ibid. Gardner, The Myth of the Impartial Psychiatric Expert — Some Comments Concerning Criminal Responsibility and the Decline of the Age of Therapy, 2 Law & Psychology Rev. 99, 113-114 (1976). In addition, “[tjestimony emanating from the depth and scope of specialized knowledge is very impressive to a jury. The same testimony from another source can have less effect.” F. Bailey & H. Rothblatt, Investigation and Preparation of Criminal Cases § 175 (1970); see also ABA Standards for Criminal Justice 5-1.4, Commentary, p. 5-20 (2d ed. 1980) (“The quality of representation at trial... may be excellent and yet valueless to the defendant if the defense requires the assistance of a psychiatrist... and no such services are available”). See also Reilly v. Barry, 250 N. Y. 456, 461, 166 N. E. 165, 167 (1929) (Cardozo, C. J.) (“[U]pon the trial of certain issues, such as insanity or forgery, experts are often necessary both for prosecution and for defense.... [A] defendant may be at an unfair disadvantage, if he is unable because of poverty to' parry by his own witnesses the thrusts of those against him”); 2 I. Goldstein & F. Lane, Goldstein Trial Techniques § 14.01 (2d ed. 1969) (“Modern civilization, with its complexities of business, science, and the professions, has made expert and Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Me. Justice Frankfurter delivered the opinion of the Court. This case grew out of a dispute between petitioner, the International Association of Machinists (IAM), affiliated with the American Federation of Labor, and the Millwrights, affiliated with the United Brotherhood of Carpenters and Joiners (Carpenters), which in turn was affiliated with the American Federation of Labor, over millwright work being performed for respondent, each union claiming the work for its own members. Respondent is engaged in the interstate manufacture and sale of beer and other commodities, with its principal place of business in St. Louis, Missouri. Its employees include members of both the IAM and the Carpenters. Respondent has always required a large amount of millwright work to be performed by outside contractors in the expansion of its facilities. After the IAM was certified in 1948 by the National Labor Relations Board as the exclusive bargaining representative of respondent’s machinists, respondent executed a collective bargaining contract with the IAM for 1949 which provided in part that when the repair or replacement of machinery was necessary, this work would be given only to those contractors who had collective agreements with the IAM. As a result of protests from the Carpenters, who claimed the same type of work for their own members, the clause was deleted from the 1950 contract between respondent and the IAM, but it was later reinstated in the 1951 contract. The Carpenters again protested, this time threatening that they would sign no contract with respondent covering those employees who were members of the Carpenters until the clause was deleted from the IAM contract. When the 1951 IAM contract expired and negotiations for a 1952 contract began, respondent refused to agree to the insertion of the clause in the new contract. An impasse was reached in the negotiations, and finally the IAM went on strike. At the time the strike was called, only one contractor was actually engaged in respondent’s millwright work, and the employees of that one contractor were covered by a contract with the IAM. On April 8, 1952, the day after the strike was called, respondent filed a charge of an unfair labor practice under § 8 (b) (4) (D) of the Taft-Hartley Act against the IAM. On November 18, 1952, the National Labor Relations Board quashed the notice of a hearing, holding that no “dispute” existed within the meaning of the invoked subsection. The Board reasoned that at the time of the strike, the IAM could not have been requesting the assignment of “particular” work to IAM members, because the IAM was not complaining about the assignment of work by respondent to its own employees, and as to work assigned by respondent’s contractors, (1) the IAM had made no demand on those contractors to give their work to IAM labor, and (2) no millwright work performed by respondent’s contractors at that time was in fact being performed by other than IAM labor. -District No. 9, International Association of Machinists, 101 N. L. R. B. 346. It must be emphasized that the only unfair labor practice charge filed with the Board, and the only one upon which the Board acted, was that prescribed in Subsection (D) of §8 (b)(4). In the meantime, on April 19, 1952, after it had filed the charge with the Board but before the Board had acted upon it, respondent sought an injunction against the IAM in the State Circuit Court in St. Louis. In its complaint, respondent alleged that the strike constituted “a secondary boycott under the common law of the State of Missouri,” and also was in violation of Subsections (A), (B) and (D) of § 8 (b) (4) of the Taft-Hartley Act and of § 303 (a) (1), (2) and (4) of that same Act. A temporary injunction issued. On April 30, respondent amended its complaint with the additional claim that the IAM’s conduct constituted an illegal conspiracy in restraint of trade under Missouri common law and conspiracy statutes. Mo. Rev. Stat., 1949, § 416.010. The temporary injunction was thereupon made permanent on September 30, 1952, some time before the Board, it will be recalled, held that there was no violation of § 8 (b) (4) (D) of the Taft-Hartley Act. This injunction was vacated, but immediately re-entered, on October 3, 1952. The IAM appealed to the Missouri Supreme Court from the Circuit Court’s injunction. That court affirmed the permanent injunction on February 8, 1954, more than a year after the Board found no violation of § 8 (b) (4)(D). The Missouri Supreme Court held that the IAM’s conduct constituted a violation of the State’s restraint of trade statute and as such was enjoinable. It referred to the ruling of the Board as a determination that “no labor dispute existed between these parties and that no unfair labor practices were there involved, and the Board, upon such ruling, quashed the notice of the hearing.” The court then stated: “The cases relied on by the defendants [the IAM] are largely cases involving existing labor disputes and unfair labor practices. We think those cases are not in point.” The court concluded: “A jurisdictional quarrel between two rival labor unions is not a labor dispute within the Norris-LaGuardia Act, . . . the Wagner Act or the Taft-Hartley Act.” 364 Mo. 573, 584, 586, 265 S. W. 2d 325, 332, 333. The State Supreme Court thus treated the Board’s holding as a determination that the allegation on which the injunction issued excluded the basis for a charge of an unfair labor practice under the Taft-Hartley Act. The principal question that the case raises, whether the state court had jurisdiction to enjoin the IAM’s conduct or whether its jurisdiction had been pre-empted by the authority vested in the National Labor Relations Board, has an importance in the federal-state relations regarding industrial controversies that led us to grant certiorari. 348 U. S. 808. The Court has had numerous occasions to deal with this delicate problem of the interplay between state and federal jurisdiction touching labor relations. It is helpful to a consideration of this latest phase briefly to summarize where our decisions, under both the Wagner Act and the Taft-Hartley Act, have brought us. 1. The Court has ruled that a State may not prohibit the exercise of rights which the federal Acts protect. Thus, in Hill v. Florida, 325 U. S. 538, the State enjoined a labor union from functioning until it had complied with certain statutory requirements. The injunction was invalidated on the ground that the Wagner Act included a “federally established right to collective bargaining” with which the injunction conflicted. International Union v. O’Brien, 339 U. S. 454, involved the strike-vote provisions of a state act which prohibited the calling of a strike until a specific statutory procedure had been followed. The state act was held to conflict not only with the procedure and other requirements of the Taft-Hartley strike provisions but also with the protection afforded by § 7 of that Act. In Amalgamated Association v. Wisconsin Employment Relations Board, 340 U. S. 383, the state court issued an injunction under a statute which made it a misdemeanor to interrupt by strike any essential public utility services. It was held that the state statute was invalid in that it denied a right which Congress had guaranteed under § 7 of the Taft-Hartley Act — the right to strike peacefully to enforce union demands for wages, hours and working conditions. Last Term the Court noted in Garner v. Teamsters Union, 346 U.S. 485, 499, that “The detailed prescription of a procedure for restraint of specified types of picketing would seem to imply that other picketing is to be free of other methods and sources of restraint. For., the policy of the national Labor Management Relations Act is not to condemn all picketing but only that ascertained by its prescribed processes to fall within its prohibitions. Otherwise, it is implicit in the Act that the public interest is served by freedom of labor to use the weapon of picketing. For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits.” 2. A State may not enjoin under its own labor statute conduct which has been made an “unfair labor practice” under the federal statutes. Such was the holding in the Garner case, supra. The Court pointed out that exclusive primary jurisdiction to pass on the union’s picketing is delegated by the Taft-Hartley Act to the National Labor Relations Board. See also Plankinton Packing Co. v. Wisconsin Employment Relations Board, 338 U. S. 953; Building Trades Council v. Kinard Construction Co., 346 U. S. 933. And in Capital Service, Inc. v. Labor Board, 347 U. S. 501, a picket line established at retail stores to induce the organization of a manufacturer’s employees was enjoined by the State as contrary to its public policy. This Court granted a limited certiorari which assumed that exclusive jurisdiction over the subject matter was in the National Labor Relations Board. The Board was allowed to obtain an injunction against enforcement of the conflicting state court injunction. 3. The federal Board’s machinery for dealing with certification problems also carries implications of exclusiveness. Thus, a State may not certify a union as the collective bargaining agent for employees where the federal Board, if called upon, would use its own certification procedure. La Crosse Telephone Corp. v. Wisconsin Employment Relations Board, 336 U. S. 18. The same result is reached even if the federal Board has refused certification, if the employer is subject to the Board’s jurisdiction. Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U. S. 767. 4. On the other hand, in the following cases the authority which the State exercised was found not to have been exclusively absorbed by the federal enactments. In Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740, the State was allowed to enjoin mass picketing, threats of bodily injury and property damage to employees, obstruction of streets and public roads, the blocking of entrance to and egress from a factory, and the picketing of employees’ homes. The Court held that such conduct was not subject to regulation by the federal Board, either by prohibition or by protection. International Union v. Wisconsin Employment Relations Board, 336 U. S. 245, involved recurrent, unannounced work stoppages. The Court upheld the state injunction on the ground that such conduct was neither prohibited nor protected by the Taft-Hartley Act and thus was open to state control. The Court allowed a State to forbid enforcement of a maintenance-of-membership clause in a contract between employer and union in Algoma Plywood & Veneer Co. v. Wisconsin Employment Relations Board, 336 U. S. 301. Since nothing in the Wagner or Taft-Hartley Acts sanctioned or forbade these clauses, they were left to regulation by the State. Finally, United Construction Workers v. Laburnum Construction Corp., 347 U. S. 656, was an action for damages based on violent conduct, which the state court found to be a common-law tort. While assuming that an unfair labor practice under the Taft-Hartley Act was involved, this Court sustained the state judgment on the theory that there was no compensatory relief under the federal Act and no federal administrative relief with which the state remedy conflicted. We come, then, to the facts in this case. Contrary to the assumption of the Missouri Supreme Court, the Board had not ruled that no unfair labor practice was involved in the conduct by the IAM of which respondent complained. The Board had determined only that there was no violation of Subsection (D) of § 8 (b) (4). That was, in fact, the extent of the ruling it was empowered to make, because (D) was the only subsection alleged to have been violated. In its complaint in the state court, however, respondent broadened its allegations to include violations of Subsections (A) and (B). We do not mean to pass on the question whether the Board, by finding that no violation of (D) was involved, inferentially ruled that other subsections were or were not violated. The point is rather that the Board, and not the state court, is empowered to pass upon such issues in the first instance. If a ruling on (D) necessarily encompassed a ruling on the other subsections, we would have a different case. But the ruling on (D) was based on the finding that no “particular work” was involved— a phrase of (D) that is absent in (A) and (B). Congress has lodged in the Board responsibility for determining in the first instance whether the same considerations apply to (A) or (B) as apply to (D). Nor is it within our competence now to determine whether the conduct in controversy is subject to the authority of Subsections (A) or (B). Under the Board’s decisions, for example, it may become pertinent whether this is eventually deemed primary pressure, directed at respondent to force insertion of the disputed clause in its contract with the IAM, rather than secondary pressure, aimed at subcontractors to force them to use IAM labor. We are not now ruling on that distinction. However, the point is pertinent to our discussion, because even if it were clear that no unfair labor practices were involved, it would not necessarily follow that the State was free to issue its injunction. If this conduct does not fall within the prohibitions of § 8 of the Taft-Hartley Act, it may fall within the protection of § 7, as concerted activity for the purpose of mutual aid or protection. Respondent itself alleged that the union conduct it was seeking to stop came within the prohibitions of the federal Act, and yet it disregarded the Board and obtained relief from a state court. It is perfectly clear that had respondent gone first to a federal court instead of the state court, the federal court would have declined jurisdiction, at least as to the unfair labor practices, on the ground that exclusive primary jurisdiction was in the Board. As pointed out in the Garner case, 346 U. S., at 491, the same considerations apply to the state courts. • The Missouri Supreme Court oversimplified the factual situation when it called this merely a “jurisdictional quarrel between two rival labor unions.” A jurisdictional dispute and a secondary boycott are not necessarily mutually exclusive, as respondent itself showed by alleging, inter alia, that this was a secondary boycott prohibited by Missouri common law. Even the Board has not always been consistent in its interpretations of the various subsections of § 8 (b)(4). Respondent argues that Missouri is not prohibiting the IAM’s conduct for any reason having to do with labor relations but rather because that conduct is in contravention of a state law which deals generally with restraint of trade. It distinguishes Garner on the ground that there the State and Congress were both attempting to regulate labor relations as such. We do not think this distinction is decisive. In Garner the emphasis was not on two conflicting labor statutes but rather on two similar remedies, one state and one federal, brought to bear on precisely the same conduct. And in Capital Service, Inc. v. Labor Board, supra, we did not stop to inquire just what category of “public policy” the union's conduct allegedly violated. Our approach was emphasized in United Construction Workers v. Laburnum, Construction Corp., supra, where the violent conduct was reached by a remedy having no parallel in, and not in conflict with, any remedy afforded by the federal Act. Moreover, we must not forget that this case is not clearly one of “unfair labor practices.” Certainly if the conduct is eventually found by the National Labor Relations Board to be protected by the Taft-Hartley Act, the State cannot be heard to say that it is enjoining that conduct for reasons other than those having to do with labor relations. In Amalgamated Association v. Wisconsin Employment Relations Board, supra, the statute was directed at the preservation of public utility services and not at maintenance of sound labor relations, but the State's injunction was reversed. Controlling and therefore superseding federal power cannot be curtailed by the State even though the ground of intervention be different than that on which federal supremacy has been exercised. By the Taft-Hartley Act, Congress did not exhaust the full sweep of legislative power over industrial relations given by the Commerce Clause. Congress formulated a code whereby it outlawed some aspects of labor activities and left others free for the operation of economic forces. As to both categories, the areas that have been pre-empted by federal authority and thereby withdrawn from state power are not susceptible of delimitation by fixed metes and bounds. Obvious conflict, actual or potential, leads to easy judicial exclusion of state action. Such was the situation in Garner v. Teamsters Union, supra. But as the opinion in that case recalled, the Labor Management Relations Act “leaves much to the states, though Congress has refrained from telling us how much.” 346 U. S., at 488. This penumbral area can be rendered progressively clear only by the course of litigation. Regarding the conduct here in controversy, Congress has sufficiently expressed its purpose to bring it within federal oversight and to exclude state prohibition, even though that with which the federal law is concerned as a matter of labor relations be related by the State to the more inclusive area of restraint of trade. We realize that it is not easy for a state court to decide, merely on the basis of a complaint and answer, whether the subject matter is the concern exclusively of the federal Board and withdrawn from the State. This is particularly true in a case like this where the rulings of the Board are not wholly consistent on the meaning of the sections outlawing “unfair labor practices,” and where the area of free “concerted activities” has not been clearly bounded. But where the moving party itself alleges unfair labor practices, where the facts reasonably bring the controversy within the sections prohibiting these practices, and where the conduct, if not prohibited by the federal Act, may be reasonably deemed to come within the protection afforded by that Act, the state court must decline jurisdiction in deference to the tribunal which Congress has selected for determining such issues in the first instance. The state decree granting the permanent injunction found that “Defendants’ [IAM’s] picket line was so placed and maintained that it prevented the movement of railroad cars into and out of plaintiff’s [respondent’s] premises by a common carrier without danger of physical injury to the pickets, and movement of the cars was stopped for that reason.” The Missouri Supreme Court stated that “the transportation into and out of the plant was stopped ‘because it endangered their [presumably the pickets’] lives and limbs’; . . . .” 364 Mo., at 581, 265 S. W. 2d, at 330. We do not read this as an unambiguous determination that the IAM’s conduct amounted to the kind of mass picketing and overt threats of violence which under the Allen-Bradley Local case give the state court jurisdiction. It does not preclude the conclusion that the transportation was stopped for fear of crossing an otherwise peaceful picket line. In any event, the state injunction enjoined all picketing. Reversed and remanded. Mr. Justice Black concurs in the result. Mr. Justice Harlan took no part in the consideration or decision of this case. 61Stat. 140, 29 U. S. C. § 158 (b) (4) (D). The subsection is quoted in footnote 2, infra. “It shall be an unfair labor practice for a labor organization or its agents— “(4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; (B) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9; . . . (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work . . . .” 61 Stat. 140, 29 U. S. C. § 158 (b) (4) (A), (B) and (D). “(a) It shall be unlawful, for the purposes of this section only, in an industry or activity affecting commerce, for any labor organization to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is— “(1) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; “(2) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9 of the National Labor Relations Act ; “(4) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class unless such employer is failing to conform to an order or certification of the National Labor Relations Board determining the bargaining representative for employees performing such work. . . .” 61 Stat. 158, 29 U. S. C. § 187 (a)(1), (2) and (4). In view of the questions involving unfair labor practices and protected activity which are present in this case, it is not necessary to discuss the possible effect on state jurisdiction of §303 (a)(1), (2) and (4). Section 7 provides: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3).” 61 Stat. 140,29 U. S. C. § 157. The complaint in the state court charged the defendant unions with engaging in “an unlawful conspiracy combination and agreement, contrary to the common law of the State of California and contrary to the provisions of the Cartwright Act (Stats. 1907, p. 1835, Ch. 530), now constituting Chapter 2 of Part 2, Division 7, of the Business and Professions Code, sections 16720, et seq., to create and carry out restrictions in trade and commerce and to prevent competition in manufacturing, making, transporting, selling and purchasing of bakery products as hereinafter set forth.” The state court, however, reasoned that primary picketing was as much a combination in restraint of trade as secondary picketing, and primary picketing had been held legal by numerous state decisions. The court instead enjoined the conduct on the ground that "secondary picketing is contrary to the public policy of this state. . , .” Capital Service, Inc. v. Bakery Drivers Local Union, Civil No. 595892, Superior Court of California for the County of Los Angeles. The Court granted certiorari limited to the following question, propounded by the Court: “In view of the fact that exclusive jurisdiction over the subject matter was in the National Labor Relations Board (Garner v. Teamsters Union, 346 U. S. 485), could the Federal District Court, on application of the Board, enjoin Petitioners from enforcing an injunction already obtained from the State Court?” 346 U. S. 936. Cf., e. g., Reilly Cartage Co., 110 N. L. R. B., No. 233; Oil Workers International Union, 84 N. L. R. B. 315; International Brotherhood of Teamsters, 84 N. L. R. B. 360, rev'd sub nom. International Rice Milling Co. v. Labor Board, 183 F. 2d 21, rev’d 341 U. S. 665. See, e. g., Amazon Cotton Mill Co. v. Textile Workers Union, 167 F. 2d 183, 188-190; Bakery & Confectionery Workers’ International Union v. National Biscuit Co., 177 F. 2d 684; see also Garner v. Teamsters Union, 346 U. S. 485, 491. The Missouri Supreme Court relied upon Giboney v. Empire Storage & Ice Co., 336 U. S. 490, for the proposition that a state court retains jurisdiction over this type of suit. But Giboney was concerned solely with whether the State’s injunction against picketing violated the Fourteenth Amendment. No question of federal preemption was before the Court; accordingly, it was not dealt with in the opinion. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

J

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice O’Connor delivered the opinion of the Court. Section 102(2)(C) of the National Environmental Policy Act of 1969, 83 Stat. 853, 42 U. S. C. §4332(2)(C) (NEPA), requires federal agencies to consider the environmental impact of any major federal action. As part of its generic rule-making proceedings to evaluate the environmental effects of the nuclear fuel cycle for nuclear powerplants, the Nuclear Regulatory Commission (Commission) decided that licensing boards should assume, for purposes of NEPA, that the permanent storage of certain nuclear wastes would have no significant environmental impact and thus should not affect the decision whether to license a particular nuclear power-plant. We conclude that the Commission complied with NEPA and that its decision is not arbitrary or capricious within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U. S. C. §706. The environmental impact of operating a light-water nuclear powerplant includes the effects of offsite activities necessary to provide fuel for the plant (“front end” activities), and of offsite activities necessary to dispose of the highly toxic and long-lived nuclear wastes generated by the plant (“back end” activities). The dispute in these cases concerns the Commission’s adoption of a series of generic rules to evaluate the environmental effects of a nuclear power-plant’s fuel cycle. At the heart of each rule is Table S-3, a numerical compilation of the estimated resources used and effluents released by fuel cycle activities supporting a year’s operation of a typical light-water reactor. The three versions of Table S-3 contained similar numerical values, although the supporting documentation has been amplified during the course of the proceedings. The Commission first adopted Table S-3 in 1974, after extensive informal rulemaking proceedings. 39 Fed. Reg. 14188 et seq. (1974). This “original” rule, as it later came to be described, declared that in environmental reports and impact statements for individual licensing proceedings the environmental costs of the fuel cycle “shall be as set forth” in Table S-3 and that “[n]o further discussion of such environmental effects shall be required.” Id., at 14191. The original Table S-3 contained no numerical entry for the long-term environmental effects of storing solidified transuranic and high-level wastes, because the Commission staff believed that technology would be developed to isolate the wastes from the environment. The Commission and the parties have later termed this assumption of complete repository integrity as the “zero-release” assumption: the reasonableness of this assumption is at the core of the present controversy. The Natural Resources Defense Council (NRDC), a respondent in the present cases, challenged the original rule and a license issued under the rule to the Vermont Yankee Nuclear Power Corp. The Court of Appeals for the District of Columbia Circuit affirmed Table S-3’s treatment of the “front end” of the fuel cycle, but vacated and remanded the portion of the rule relating to the “back end” because of perceived inadequacies in the rulemaking procedures. Natural Resources Defense Council, Inc. v. NRC, 178 U. S. App. D. C. 336, 547 F. 2d 633 (1976). Judge Tamm disagreed that the procedures were inadequate, but concurred on the ground that the record on waste storage was inadequate to support the zero-release assumption. Id., at 361, 547 F. 2d, at 658. In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519 (1978), this Court unanimously reversed the Court of Appeals’ decision that the Commission had used inadequate procedures, finding that the Commission had done all that was required by NEPA and the APA and determining that courts generally lack the authority to impose “hybrid” procedures greater than those contemplated by the governing statutes. We remanded for review of whether the original rule was adequately supported by the administrative record, specifically stating that the court was free to agree or disagree with Judge Tamm’s conclusion that the rule pertaining to the “back end” of the fuel cycle was arbitrary and capricious within the meaning of § 10(e) of the APA, 5 U. S. C. § 706. Id., at 536, n. 14. While Vermont Yankee was pending in this Court, the Commission proposed a new “interim” rulemaking proceeding to determine whether to adopt a revised Table S-3. The proposal explicitly acknowledged that the risks from long-term repository failure were uncertain, but suggested that research should resolve most of those uncertainties in the near future. 41 Fed. Reg. 45850-45851 (1976). After further proceedings, the Commission promulgated the interim rule in March 1977. Table S-3 now explicitly stated that solidified high-level and transuranic wastes would remain buried in a federal repository and therefore would have no effect on the environment. 42 Fed. Reg. 13807 (1977). Like its predecessor, the interim rule stated that “[n]o further discussion of such environmental effects shall be required.” Id., at 13806. The NRDC petitioned for review of the interim rule, challenging the zero-release assumption and faulting the Table S-3 rule for failing to consider the health, cumulative, and socioeconomic effects of the fuel cycle activities. The Court of Appeals stayed proceedings while awaiting this Court’s decision in Vermont Yankee. In April 1978, the Commission amended the interim rule to clarify that health effects were not covered by Table S-3 and could be litigated in individual licensing proceedings. 43 Fed. Reg. 15613 et seq. (1978). In 1979, following further hearings, the Commission adopted the “final” Table S-3 rule. 44 Fed. Reg. 45362 et seq. (1979). Like the amended interim rule, the final rule expressly stated that Table S-3 should be supplemented in individual proceedings by evidence about the health, socioeconomic, and cumulative aspects of fuel cycle activities. The Commission also continued to adhere to the zero-release assumption that the solidified waste would not escape and harm the environment once the repository was sealed. It acknowledged that this assumption was uncertain because of the remote possibility that water might enter the repository, dissolve the radioactive materials, and transport them to the biosphere. Nevertheless, the Commission predicted that a bedded-salt repository would maintain its integrity, and found the evidence “tentative but favorable” that an appropriate site would be found. Id., at 45368. The Commission ultimately determined that any undue optimism in the assumption of appropriate selection and perfect performance of the repository is offset by the cautious assumption, reflected in other parts of the Table, that all radioactive gases in the spent fuel would escape during the initial 6- to 20-year period that the repository remained open, ibid., and thus did not significantly reduce the overall conservatism of Table S-3. Id., at 45369. The Commission rejected the option of expressing the uncertainties in Table S-3 or permitting licensing boards, in performing the NEPA analysis for individual nuclear plants, to consider those uncertainties. It saw no advantage in reassessing the significance of the uncertainties in individual licensing proceedings: “In view of the uncertainties noted regarding waste disposal, the question then arises whether these uncertainties can or should be reflected explicitly in the fuel cycle rule. The Commission has concluded that the rule should not be so modified. On the individual reactor licensing level, where the proceedings deal with fuel cycle issues only peripherally, the Commission sees no advantage in having licensing boards repeatedly weigh for themselves the effect of uncertainties on the selection of fuel cycle impacts for use in cost-benefit balancing. This is a generic question properly dealt with in the rule-making as part of choosing what impact values should go into the fuel cycle rule. The Commission concludes, having noted that uncertainties exist, that for the limited purpose of the fuel cycle rule it is reasonable to base impacts on the assumption which the Commission believes the probabilities favor, i. e., that bedded-salt repository sites can be found which will provide effective isolation of radioactive waste from the biosphere. ” Id., at 45369. The NRDC and respondent State of New York petitioned for review of the final rule. The Court of Appeals consolidated these petitions for all purposes with the pending challenges to the initial and interim rules. By a divided panel, the court concluded that the Table S-3 rules were arbitrary and capricious and inconsistent with NEPA because the Commission had not factored the consideration of uncertainties surrounding the zero-release assumption into the licensing process in such a manner that the uncertainties could potentially affect the outcome of any decision to license a particular plant. Natural Resources Defense Council, Inc. v. NRC, 222 U. S. App. D. C. 9, 685 F. 2d 459 (1982). The court first reasoned that NEPA requires an agency to consider all significant environmental risks from its proposed action. If the zero-release assumption is taken as a, finding that long-term storage poses no significant environmental risk, which the court acknowledged may not have been the Commission’s intent, it found that the assumption represents a self-evident error in judgment and is thus arbitrary and capricious. As the evidence in the record reveals and the Commission itself acknowledged, the zero-release assumption is surrounded with uncertainty. Alternatively, reasoned the Court of Appeals, the zero-release assumption could be characterized as a decision-making device whereby the Commission, rather than individual licensing boards, would have sole responsibility for considering the risk that long-lived wastes will not be disposed of with complete success. The court recognized that the Commission could use generic rulemaking to evaluate environmental costs common to all licensing decisions. Indeed, the Commission could use generic rulemaking to balance generic costs and benefits to produce a generic “net value.” These generic evaluations could then be considered together with case-specific costs and benefits in individual proceedings. The key requirement of NEPA, however, is that the agency consider and disclose the actual environmental effects in a manner that will ensure that the overall process, including both the generic rulemaking and the individual proceedings, brings those effects to bear on decisions to take particular actions that significantly affect the environment. The Court of Appeals concluded that the zero-release assumption was not in accordance with this NEPA requirement because the assumption prevented the uncertainties — which were not found to be insignificant or outweighed by other generic benefits — from affecting any individual licensing decision. Alternatively, by requiring that the licensing decision ignore factors that are relevant under NEPA, the zero-release assumption is a clear error in judgment and thus arbitrary and capricious. We granted certiorari. 459 U. S. 1034 (1982). We reverse. h-4 I — I We are acutely aware that the extent to which this Nation should rely on nuclear power as a source of energy is an important and sensitive issue. Much of the debate focuses on whether development of nuclear generation facilities should proceed in the face of uncertainties about their long-term effects on the environment. Resolution of these fundamental policy questions lies, however, with Congress and the agencies to which Congress has delegated authority, as well as with state legislatures and, ultimately, the populace as a whole. Congress has assigned the courts only the limited, albeit important, task of reviewing agency action to determine whether the agency conformed with controlling statutes. As we emphasized in our earlier encounter with these very proceedings, “[administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute..., not simply because the court is unhappy with the result reached.” Vermont Yankee, 435 U. S., at 558. The controlling statute at issue here is NEPA. NEPA has twin aims. First, it “places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.” Vermont Yankee, supra, at 553. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process. Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U. S. 139, 143 (1981). Congress in enacting NEPA, however, did not require agencies to elevate environmental concerns over other appropriate considerations. See Stryckers’ Bay Neighborhood Council v. Karlen, 444 U. S. 223, 227 (1980) (per curiam). Rather, it required only that the agency take a “hard look” at the environmental consequences before taking a major action. See Kleppe v. Sierra Club, 427 U. S. 390, 410, n. 21 (1976). The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious. See generally Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 415-417 (1971). In its Table S-3 rule here, the Commission has determined that the probabilities favor the zero-release assumption, because the Nation is likely to develop methods to store the wastes with no leakage to the environment. The NRDC did not challenge and the Court of Appeals did not decide the reasonableness of this determination, 222 U. S. App. D. C., at 28, n. 96, 685 F. 2d, at 478, n. 96, and no party seriously challenges it here. The Commission recognized, however, that the geological, chemical, physical, and other data it relied on in making this prediction were based, in part, on assumptions which involve substantial uncertainties. Again, no one suggests that the uncertainties are trivial or the potential effects insignificant if time proves the zero-release assumption to have been seriously wrong. After confronting the issue, though, the Commission has determined that the uncertainties concerning the development of nuclear waste storage facilities are not sufficient to affect the outcome of any individual licensing decision. It is clear that the Commission, in making this determination, has made the careful consideration and disclosure required by NEPA. The sheer volume of proceedings before the Commission is impressive. Of far greater importance, the Commission’s Statement of Consideration announcing the final Table S-3 rule shows that it has digested this mass of material and disclosed all substantial risks. 44 Fed. Reg. 45367-45369 (1979). The Statement summarizes the major uncertainty of long-term storage in bedded-salt repositories, which is that water could infiltrate the repository as a result of such diverse factors as geologic faulting, a meteor strike, or accidental or deliberate intrusion by man. The Commission noted that the probability of intrusion was small, and that the plasticity of salt would tend to heal some types of intrusions. The Commission also found the evidence “tentative but favorable” that an appropriate site could be found. Table S-3 refers interested persons to staff studies that discuss the uncertainties in greater detail. Given this record and the Commission’s statement, it simply cannot be said that the Commission ignored or failed to disclose the uncertainties surrounding its zero-release assumption. Congress did not enact NEPA, of course, so that an agency would contemplate the environmental impact of an action as an abstract exercise. Rather, Congress intended that the “hard look” be incorporated as part of the agency’s process of deciding whether to pursue a particular federal action. It was on this ground that the Court of Appeals faulted the Commission’s action, for failing to allow the uncertainties potentially to “tip the balance” in a particular licensing decision. As a general proposition, we can agree with the Court of Appeals’ determination that an agency must allow all significant environmental risks to be factored into the decision whether to undertake a proposed action. We think, however, that the Court of Appeals erred in concluding that the Commission had not complied with this standard. As Vermont Yankee made clear, NEPA does not require agencies to adopt any particular internal decisionmaking structure. Here, the agency has chosen to evaluate generically the environmental impact of the fuel cycle and inform individual licensing boards, through the Table S-3 rule, of its evaluation. The generic method chosen by the agency is clearly an appropriate method of conducting the “hard look” required by NEPA. See Vermont Yankee, 435 U. S., at 535, n. 13. The environmental effects of much of the fuel cycle are not plant specific, for any plant, regardless of its particular attributes, will create additional wastes that must be stored in a common long-term repository. Administrative efficiency and consistency of decision are both furthered by a generic determination of these effects without needless repetition of the litigation in individual proceedings, which are subject to review by the Commission in any event. See generally Ecology Action v. AEC, 492 F. 2d 998, 1002, n. 5 (CA2 1974) (Friendly, J.) (quoting Administrative Conference Proposed Recommendation 73-6). The Court of Appeals recognized that the Commission has discretion to evaluate generically the environmental effects of the fuel cycle and require that these values be “plugged into” individual licensing decisions. The court concluded that the Commission nevertheless violated NEPA by failing to factor the uncertainty surrounding long-term storage into Table S-3 and precluding individual licensing decisionmakers from considering it. The Commission’s decision to affix a zero value to the environmental impact of long-term storage would violate NEPA, however, only if the Commission acted arbitrarily and capriciously in deciding generically that the uncertainty was insufficient to affect any individual licensing decision. In assessing whether the Commission’s decision is arbitrary and capricious, it is crucial to place the zero-release assumption in context. Three factors are particularly important. First is the Commission’s repeated emphasis that the zero-release assumption — and, indeed, all of the Table S-3 rule — was made for a limited purpose. The Commission expressly noted its intention to supplement the rule with an explanatory narrative. It also emphasized that the purpose of the rule was not to evaluate or select the most effective long-term waste disposal technology or develop site selection criteria. A separate and comprehensive series of programs has been undertaken to serve these broader purposes. In the proceedings before us, the Commission’s staff did not attempt to evaluate the environmental effects of all possible methods of disposing of waste. Rather, it chose to analyze intensively the most probable long-term waste disposal method — burial in a bedded-salt repository several hundred meters below ground — and then “estimate its impacts conservatively, based on the best available information and analysis.” 44 Fed. Reg. 45863 (1979). The zero-release assumption cannot be evaluated in isolation. Rather, it must be assessed in relation to the limited purpose for which the Commission made the assumption. Second, the Commission emphasized that the zero-release assumption is but a single figure in an entire Table, which the Commission expressly designed as a risk-averse estimate of the environmental impact of the fuel cycle. It noted that Table S-3 assumed that the fuel storage canisters and the fuel rod cladding would be corroded before a repository is closed and that all volatile materials in the fuel would escape to the environment. Given that assumption, and the improbability that materials would escape after sealing, the Commission determined that the overall Table represented a conservative (i. e., inflated) statement of environmental impacts. It is not unreasonable for the Commission to counteract the uncertainties in postsealing releases by balancing them with an overestimate of presealing releases. A reviewing court should not magnify a single line item beyond its significance as only part of a larger Table. Third, a reviewing court must remember that the Commission is making predictions, within its area of special expertise, at the frontiers of science. When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential. See, e. g., Industrial Union Dept. v. American Petroleum Institute, 448 U. S. 607, 656 (1980) (plurality opinion); id., at 705-706 (Marshall, J., dissenting). With these three guides in mind, we find the Commission’s zero-release assumption to be within the bounds of reasoned decisionmaking required by the APA. We have already noted that the Commission’s Statement of Consideration detailed several areas of uncertainty and discussed why they were insubstantial for purposes of an individual licensing decision. The Table S-3 rule also refers to the staff reports, public documents that contain a more expanded discussion of the uncertainties involved in concluding that long-term storage will have no environmental effects. These staff reports recognize that rigorous verification of long-term risks for waste repositories is not possible, but suggest that data and extrapolation of past experience allow the Commission to identify events that could produce repository failure, estimate the probability of those events, and calculate the resulting consequences. NUREG-0116, at 4-86. The Commission staff also modeled the consequences of repository failure by tracing the flow of contaminated water, and found them to be insignificant. Id., at 4-89 through 4-94. Ultimately, the staff concluded that “[t]he radiotoxic hazard index analyses and the modeling studies that have been done indicate that consequences of all but the most improbable events will be small. Risks (probabilities times consequences) inherent in the long term for geological disposal will therefore also be small.” Id., at 2-11. We also find significant the separate views of Commissioners Bradford and Gilinsky. These Commissioners expressed dissatisfaction with the zero-release assumption and yet emphasized the limited purpose of the assumption and the overall conservatism of Table S-3. Commissioner Bradford characterized the bedded-salt repository as a responsible working assumption for NEPA purposes and concurred in the zero-release figure because it does not appear to affect Table S-3’s overall conservatism. 44 Fed. Reg. 45372 (1979). Commissioner Gilinsky was more critical of the entire Table, stating that the Commission should confront directly whether it should license any nuclear reactors in light of the problems of waste disposal, rather than hide an affirmative conclusion to this issue behind a table of numbers. He emphasized that the “waste confidence proceeding,” see n. 14, supra, should provide the Commission an appropriate vehicle for a thorough evaluation of the problems involved in the Government’s commitment to a waste disposal solution. For the limited purpose of individual licensing proceedings, however, Commissioner Gilinsky found it “virtually inconceivable” that the Table should affect the decision whether to license, and characterized as “naive” the notion that the fuel cycle effluents could tip the balance in some cases and not in others. 44 Fed. Reg. 45374 (1979). In sum, we think that the zero-release assumption — a policy judgment concerning one line in a conservative Table designed for the limited purpose of individual licensing decisions — is within the bounds of reasoned decisionmaking. It is not our task to determine what decision we, as Commissioners, would have reached. Our only task is to determine whether the Commission has considered the relevant factors and articulated a rational connection between the facts found and the choice made. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 285-286 (1974); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402 (1971). Under this standard, we think the Commission's zero-release assumption, within the context of Table S-3 as a whole, was not arbitrary and capricious. r-4 1 — 4 HH As we have noted, n. 5, supra, Table S-3 describes effluents and other impacts in technical terms. The Table does not convert that description into tangible effects on human health or other environmental variables. The original and interim rules declared that “the contribution of the environmental effects of... fuel cycle activities... shall be as set forth in the following Table S-3 [and] [n]o further discussion of such environmental effects shall be required.” 39 Fed. Reg. 14191 (1974); 42 Fed. Reg. 13806 (1977). Since the Table does not specifically mention health effects, socioeconomic impacts, or cumulative impacts, this declaration does not clearly require or preclude their discussion. The Commission later amended the interim rule to clarify that health effects were not covered by Table S-3 and could be litigated in individual licensing proceedings. In the final rule, the Commission expressly required licensing boards to consider the socioeconomic and cumulative effects in addition to the health effects of the releases projected in the Table. 44 Fed. Reg. 45371 (1979). The Court of Appeals held that the original and interim rules violated NEPA by precluding licensing boards from considering the health, socioeconomic, and cumulative effects of the environmental impacts stated in technical terms. As does the Commission, we agree with the Court of Appeals that NEPA requires an EIS to disclose the significant health, socioeconomic, and cumulative consequences of the environmental impact of a proposed action. See Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U. S. 766 (1983); Kleppe v. Sierra Club, 427 U. S., at 410; 40 CFR §§ 1508.7, 1508.8 (1982). We find no basis, however, for the Court of Appeals’ conclusion that the Commission ever precluded a licensing board from considering these effects. It is true, as the Commission pointed out in explaining why it modified the language in the earlier rules, that the original Table S-3 rule “at least initially was apparently interpreted as cutting off” discussion of the effects of effluent releases. 44 Fed. Reg. 45364 (1979). But even the notice accompanying the earlier versions stated that the Table was “to be used as a basis for evaluating the environmental effects in a cost-benefit analysis for a reactor,” 39 Fed. Reg. 14190 (1974) (emphasis added), suggesting that individual licensing boards were to assess the consequences of effluent releases. And when, operating under the initial rule, the Atomic Safety and Licensing Appeal Board suggested the desirability of discussing health effects for comparing nuclear with coal plants, In re Tennessee Valley Authority (Hartsville Nuclear Plant Units), 5 N. R. C. 92, 103, n. 52 (1977), the Commission staff was allowed to introduce evidence of public health consequences. Cf. In re Public Service Company of Indiana (Marble Hill Nuclear Generating Station), 7 N. R. C. 179, 187 (1978). Respondents have pointed to no case where evidence concerning health or other consequences of the data in Table S-3 was excluded from licensing proceedings. We think our admonition in Vermont Yankee applies with equal force here: “[WJhile it is true that NEPA places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action, it is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors’ position and contentions.” 435 U. S., at 553. In short, we find it totally inappropriate to cast doubt on licensing proceedings simply because of a minor ambiguity in the language of the earlier rule under which the environmental impact statement was made, when there is no evidence that this ambiguity prevented any party from making as full a presentation as desired, or ever affected the decision to license the plant. IV For the foregoing reasons, the judgment of the Court of Appeals for the District of Columbia Circuit is Reversed. Justice Powell took no part in the consideration or decision of these cases. APPENDIX TO THE OPINION OF THE COURT Section 102(2)(C) provides: “The Congress authorizes and directs that, to the fullest extent possible... (2) all agencies of the Federal Government shall— “(c) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— “(i) the environmental impact of the proposed action, “(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, [and] “(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” The original Table S-3 rule was promulgated by the Atomic Energy Commission (AEC). Congress abolished the AEC in the Energy Reorganization Act of 1974,42 U. S. C. § 5801 et seq., and transferred its licensing and regulatory functions to the Nuclear Regulatory Commission (NRC). The interim and final rules were promulgated by the NRC. This opinion will use the term “Commission” to refer to both the NRC and the predecessor AEC. Title 5 U. S. C. § 706 states in part: “The reviewing court shall— “(2) hold unlawful and set aside agency action, findings, and conclusions found to be— “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” A light-water nuclear powerplant is one that uses ordinary water (H20), as opposed to heavy water (D20), to remove the heat generated in the nuclear core. See Van Nostrand’s Scientific Encyclopedia 1998, 2008 (D. Considine & G. Considine eds., 6th ed. 1983). The bulk of the reactors in the United States are light-water nuclear reactors. NRC Ann. Rep., Appendix 6 (1980). For example, the tabulated impacts include the acres of land committed to fuel cycle activities, the amount of water discharged by such activities, fossil fuel consumption, and chemical and radiological effluents (measured in curies), all normalized to the annual fuel requirement for a model 1,000 megawatt light-water reactor. See Table S-3, reprinted in the Appendix, infra. Under the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U. S. C. § 2011 et seq., a utility seeking to construct and operate a nuclear powerplant must obtain a separate permit or license at both the construction and the operation stage of the project. After the Commission’s staff has examined the application for a construction license, which includes a review of possible environmental effects as required by NEPA, a three-member Atomic Safety and Licensing Board conducts a public adjudicatory hearing and reaches a decision which can be appealed to the Atomic Safety and Licensing Appeal Board and, in the Commission’s discretion, to the Commission itself. The final agency decision may be appealed to the courts of appeals. A similar procedure occurs when the utility applies for an operating license, except that a hearing need be held only in contested cases. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 526-527 (1978). High-level wastes, which are highly radioactive, are produced in liquid form when spent fuel is reprocessed. Transuranic wastes, which are also highly toxic, are nuclides heavier than uranium that are produced in the reactor fuel. See Natural Resources Defense Council, Inc. v. NRC, 222 U. S. App. D. C. 9, 16, n. 11, 685 F. 2d, 459, 466, n. 11 (1982). In Vermont Yankee, we indicated that the Court of Appeals could consider any additions made to the record by the Commission, and could consolidate review of the initial review with review of later rules. 435 U. S., at 537, n. 14. Consistent with this direction, the parties stipulated that all three versions of the rule could be reviewed on the basis of the whole record. See 222 U. S. App. D. C., at 21, n. 39, 685 F. 2d, at 471, n. 39. Judge Bazelon wrote the opinion for the court. Judge Wilkey joined the section of the opinion that rejected New York’s argument that the waste-disposal technology assumed for calculation of certain effluent release values was economically infeasible. That issue is not before us. Judge Wilkey filed a dissenting opinion on the issues that are under review here. Judge Edwards of the Court of Appeals for the Sixth Circuit, sitting by designation, joined these sections of Judge Bazelon’s opinion, and also filed a separate opinion concurring in part and dissenting on the economic infeasibility issue. As the Court of Appeals recognized, 222 U. S. App. D. C., at 31, n. 118, 685 F. 2d, at 481, n. 118, the Commission became increasingly candid in acknowledging the uncertainties underlying permanent waste disposal. Because all three versions of Table S-3 use the same zero-release assumption, and the parties stipulated that the entire record be used in reviewing all three versions, see n. 8, supra, we need review only the propriety of the final Table S-3 rule. We leave for another day any general concern with an agency whose initial Environmental Impact Statement (EIS) is insufficient but who later adequately supplements its consideration and disclosure of the environmental impact of its action. The record includes more than 1,100 pages of prepared direct testimony, two rounds of questions by participants and several hundred pages of responses, 1,200 pages of oral hearings, participants’ rebuttal testimony, concluding statements, the 137-page report of the hearing board, further written statements from participants, and oral argument before the Commission. The Commission staff has prepared three studies of the environmental effects of the fuel cycle: Environmental Survey of the Uranium Fuel Cycle, WASH-1248 (Apr. 1974); Environmental Survey of the Reprocessing and Waste Management Portions of the LWR Fuel Cycle, NUREG-0116 (Supp. 1 to WASH-1248) (Oct. 1976) (hereinafter cited as NUREG-0116); and Public Comments and Task Force Responses Regarding the Environmental Survey of the Reprocessing and Waste Management Portions of the LWR Fuel Cycle, NUREG-0216 (Supp. 2 to WASH-1248) (Mar. 1977). We are reviewing here only the Table S-3 rulemaking proceedings, and do not have before us an individual EIS that incorporates Table S-3. It is clear that the Statement of Consideration supporting the Table S-3 rule adequately discloses the environmental uncertainties considered by the Commission. However, Table S-3 itself refers to other documents but gives only brief descriptions of the environmental effects it encapsulates. There is some concern with an EIS that relies too heavily on separate documents rather than addressing the concerns directly. Although we do not decide whether they have binding effect on an independent agency such as the Commission, it is worth noting that the guidelines from the Council on Environmental Quality in effect during these proceedings required that “care should be taken to ensure that the statement remains an essentially self-contained instrument, capable of being understood by the reader without the need for undue cross reference.” 38 Fed. Reg. 20554 (1973), 40 CFR § 1500.8(b) (1974). The present regulations state that incorporation by reference is permissible if it will not “imped[e] agency and public review of the action. The incorporated material shall be cited in the statement and its content briefly described.” 40 CFR § 1502.21 (1982). The Court of Appeals noted that NEPA “requires an agency to do more than to scatter its evaluation of environmental damage among various public documents,” 222 U. S. App. D. C., at 34, 685 F. 2d, at 484, but declined to find that the incorporation of other documents by reference would invalidate an EIS that used Table S-3 to describe the environmental impact of the fuel cycle. The parties here do not treat this insufficient disclosure argument as a separate argument and, like the Court of Appeals, we decline to strike down the rule on this ground. We do not deny the value of an EIS that can be understood without extensive cross-reference. The staff documents referred to in Table S-3 are public documents, however, and we note that the Commission has proposed an explanatory narrative to accompany Table S-3, which would be included in an individual EIS, that may alleviate some of the concerns of incorporation. See n. 13, infra. In March Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Ginsburg delivered the opinion of the Court. This case concerns the consequences of a state trial court’s erroneous denial of a defendant’s peremptory challenge to the seating of a juror in a criminal case. If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant’s conviction? Following a jury trial in an Illinois state court, defendant-petitioner Michael Rivera was convicted of first-degree murder and sentenced to a prison term of 85 years. On appeal, Rivera challenged the trial court’s rejection of his peremptory challenge to venire member Deloris Gomez. Gomez sat on Rivera’s jury and indeed served as the jury’s foreperson. It is conceded that there was no basis to challenge Gomez for cause. She met the requirements for jury service, and Rivera does not contend that she was in fact biased against him. The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless and therefore did not warrant reversal of Rivera’s conviction. We affirm the judgment of the Illinois Supreme Court. The right to exercise peremptory challenges in state court is determined by state law. This Court has “long recognized” that “peremptory challenges are not of federal constitutional dimension.” United States v. Martinez-Salazar, 528 U. S. 304, 311 (2000). States may withhold peremptory challenges “altogether without impairing the constitutional guarantee of an impartial jury and a fair trial.” Georgia v. McCollum, 505 U. S. 42, 57 (1992). Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Accordingly, we have no cause to disturb the Illinois Supreme Court’s determination that, in the circumstances Rivera’s case presents, the trial court’s error did not warrant reversal of his conviction. I Rivera was charged with first-degree murder in the Circuit Court of Cook County, Illinois. The State alleged that Rivera, who is Hispanic, shot and killed Marcus Lee, a 16-year-old African-American, after mistaking Lee for a member of a rival gang. During jury selection, Rivera’s counsel questioned prospective juror Deloris Gomez, a business office supervisor at Cook County Hospital’s outpatient orthopedic clinic. App. 32-33. Gomez stated that she sometimes interacted with patients during the check-in process and acknowledged that Cook County Hospital treats many gunshot victims. She maintained, however, that her work experience would not affect her ability to be impartial. After questioning Gomez, Rivera’s counsel sought to use a peremptory challenge to excuse her. Id., at 33. At that point in the jury’s selection, Rivera had already used three peremptory challenges. Two of the three were exercised against women; one of the two women thus eliminated was African-American. Illinois law affords each side seven peremptory challenges. See Ill. Sup. Ct. Rule 434(d) (West 2006). Rather than dismissing Gomez, the trial judge called counsel to chambers, where he expressed concern that the defense was discriminating against Gomez. App. 34-36. Under Batson v. Kentucky, 476 U. S. 79 (1986), and later decisions building upon Batson, parties are constitutionally prohibited from exercising peremptory challenges to exclude jurors on the basis of race, ethnicity, or sex. Without specifying the type of discrimination he suspected or the reasons for his concern, the judge directed Rivera’s counsel to state his reasons for excusing Gomez. Counsel responded, first, that Gomez saw victims of violent crime on a daily basis. Counsel next added that he was “pulled in two different ways” because Gomez had “some kind of Hispanic connection given her name.” App. 34. At that point, the judge interjected that Gomez “appears to be an African American”— the second “African American female” the defense had struck. Id., at 34-35. Dissatisfied with counsel’s proffered reasons, the judge denied the challenge to Gomez, but agreed to allow counsel to question Gomez further. After asking Gomez additional questions about her work at the hospital, Rivera’s counsel renewed his challenge. Counsel observed, outside the jury’s presence, that most of the jurors already seated were women. Counsel said he hoped to “get some impact from possibly other men in the ease.” Id., at 39. The court reaffirmed its earlier ruling, and Gomez was seated on the jury. Rivera’s case proceeded to trial. The jury, with Gomez as its foreperson, found Rivera guilty of first-degree murder. A divided panel of the Appellate Court of Illinois rejected Rivera’s challenge to the trial judge’s Batson ruling and affirmed his conviction. 348 Ill. App. 3d 168, 810 N. E. 2d 129 (2004). The Supreme Court of Illinois accepted Rivera’s petition for leave to appeal and remanded for further proceedings. 221 Ill. 2d 481, 852 N. E. 2d 771 (2006). A trial judge, the court held, may raise a Batson issue sua sponte only when there is a prima facie case of discrimination. Concluding that the record was insufficient to evaluate the existence of a prima facie case, the court instructed the trial judge to articulate the bases for his Batson ruling and, in particular, to clarify whether the alleged discrimination was on the basis of race, sex, or both. 221 Ill. 2d, at 515-516, 852 N. E. 2d, at 791. On remand, the trial judge stated that prima facie evidence of sex discrimination — namely, counsel’s two prior challenges to women and “the nature of [counsel’s] questions” — had prompted him to raise the Batson issue. App. 136. Counsel’s stated reasons for challenging Gomez, the judge reported, convinced him that “there had been a purposeful discrimination against Mrs. Gomez because of her gender.” Id., at 137. The case then returned to the Illinois Supreme Court. Although that court disagreed with the trial judge’s assessment, it affirmed Rivera’s conviction. 227 Ill. 2d 1, 879 N. E. 2d 876 (2007). The Illinois High Court concluded “that the record fails to support a prima facie case of discrimination of any kind.” Id., at 15, 879 N. E. 2d, at 884. Accordingly, the court determined, the trial judge erred, first in demanding an explanation from Rivera’s counsel, and next, in denying Rivera’s peremptory challenge of Gomez. Ibid. Even so, the Illinois Supreme Court rejected Rivera’s ultimate argument that the improper seating of Gomez ranked as “reversible error without a showing of prejudice.” Id., at 16, 879 N. E. 2d, at 885 (quoting Swain v. Alabama, 380 U. S. 202, 219 (1965)). Citing this Court’s guiding decisions, the Illinois court observed that “the Constitution does not confer a right to peremptory challenges.” 227 Ill. 2d, at 17, 879 N. E. 2d, at 885 (quoting Batson, 476 U. S., at 91). Although “peremptory challenges are ‘one means of assuring the selection of a qualified and unbiased jury,’” the court explained, they are not “indispensable to a fair trial.” 227 Ill. 2d, at 16, 879 N. E. 2d, at 885 (quoting Batson, 476 U. S., at 91). Accordingly, the court held, the denial of Rivera’s peremptory challenge did not qualify as a structural error requiring automatic reversal. See 227 Ill. 2d, at 19-20, 879 N. E. 2d, at 887 (citing Washington v. Recuenco, 548 U. S. 212, 218-219 (2006)). The court saw no indication that Rivera had been “tried before a biased jury, or even one biased juror.” 227 Ill. 2d, at 20, 879 N. E. 2d, at 887. In that regard, the court stressed, Rivera did “not suggest that Gomez was subject to excusal for cause.” Ibid. Relying on both federal and state precedents, the court proceeded to consider whether it was “clear beyond a reasonable doubt that a rational jury would have found [Rivera] guilty absent the error.” Id., at 21, 879 N. E. 2d, at 887 (quoting Neder v. United States, 527 U. S. 1, 18 (1999)). After reviewing the trial record, the court concluded that Gomez’s presence on the jury did not prejudice Rivera because “any rational trier of fact would have found [Rivera] guilty of murder on the evidence adduced at trial.” 227 Ill. 2d, at 26, 879 N. E. 2d, at 890. Having held the error harmless beyond a reasonable doubt, the court added that it “need not decide whether the erroneous denial of a peremptory challenge is an error of constitutional dimension in these circumstances.” Id., at 27, 879 N. E. 2d, at 891. This comment, it appears, related to Rivera’s arguments that, even absent a freestanding constitutional entitlement to peremptory challenges, the inclusion of Gomez on his jury violated his Fourteenth Amendment right to due process of law. We granted certiorari, 554 U. S. 945 (2008), to resolve an apparent conflict among state high courts over whether the erroneous denial of a peremptory challenge requires automatic reversal of a defendant’s conviction as a matter of federal law. Compare Angus v. State, 695 N. W. 2d 109, 118 (Minn. 2005) (applying automatic reversal rule); State v. Vreen, 143 Wash. 2d 923, 927-932, 26 P. 3d 236, 238-240 (2001) (same), with People v. Bell, 473 Mich. 275, 292-299, 702 N. W. 2d 128, 138-141 (2005) (rejecting automatic reversal rule and looking to state law to determine the consequences of an erroneous denial of a peremptory challenge); 227 Ill. 2d, at 15-27, 879 N. E. 2d, at 884-891 (case below). We now affirm the judgment of the Supreme Court of Illinois. II The Due Process Clause of the Fourteenth Amendment, Rivera maintains, requires reversal whenever a criminal defendant’s peremptory challenge is erroneously denied. Rivera recalls the ancient lineage of the peremptory challenge and observes that the challenge has long been lauded as a means to guard against latent bias and to secure “the constitutional end of an impartial jury and a fair trial.” McCollum, 505 U. S., at 57. When a trial court fails to dismiss a lawfully challenged juror, Rivera asserts, it commits structural error: The jury becomes an illegally constituted tribunal, and any verdict it renders is per se invalid. According to Rivera, this holds true even if the Constitution does not itself mandate peremptory challenges, because criminal defendants have a constitutionally protected liberty interest in their state-provided peremptory challenge rights. Cf. Evitts v. Lucey, 469 U. S. 387, 393 (1985) (although “the Constitution does not require States to grant appeals as of right to criminal defendants,” States that provide such appeals “must comport with the demands of the Due Process and Equal Protection Clauses”). The improper seating of a juror, Rivera insists, is not amenable to harmless-error analysis because it is impossible to ascertain how a properly constituted jury — here, one without juror Gomez — would have decided his case. Thus, he urges, whatever the constitutional status of peremptory challenges, automatic reversal must be the rule as a matter of federal law. Rivera’s arguments do not withstand scrutiny. If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws. As Rivera acknowledges, Brief for Petitioner 38, this Court has consistently held that there is no freestanding constitutional right to peremptory challenges. See, e. g., Martinez-Salazar, 528 U. S., at 311. We have characterized peremptory challenges as “a creature of statute,” Ross v. Oklahoma, 487 U. S. 81, 89 (1988), and have made clear that a State may decline to offer them at all, McCollum, 505 U. S., at 57. See also Holland v. Illinois, 493 U. S. 474, 482 (1990) (dismissing the notion “that the requirement of an ‘impartial jury’ impliedly compels peremptory challenges”). When States provide peremptory challenges (as all do in some form), they confer a benefit “beyond the minimum requirements of fair [jury] selection,” Frazier v. United States, 335 U. S. 497, 506 (1948), and thus retain discretion to design and implement their own systems, Ross, 487 U. S., at 89. Because peremptory challenges are within the States’ province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution. “[A] mere error of state law,” we have noted, “is not a denial of due process.” Engle v. Isaac, 456 U. S. 107, 121, n. 21 (1982) (internal quotation marks omitted). See also Estelle v. McGuire, 502 U. S. 62, 67, 72-73 (1991). The Due Process Clause, our decisions instruct, safeguards not the meticulous observance of state procedural prescriptions, but “the fundamental elements of fairness in a criminal trial.” Spencer v. Texas, 385 U. S. 554, 563-564 (1967). The trial judge’s refusal to excuse juror Gomez did not deprive Rivera of his constitutional right to a fair trial before an impartial jury. Our decision in Ross is instructive. Ross, a criminal defendant in Oklahoma, used a peremptory challenge to rectify the trial court’s erroneous denial of a for-cause challenge, leaving him with one fewer peremptory challenge to use at his discretion. The trial court’s error, we acknowledged, “may have resulted in a jury panel different from that which would otherwise have decided [Ross’s] case.” 487 U. S., at 87. But because no member of the jury as finally composed was removable for cause, we found no violation of Ross’s Sixth Amendment right to an impartial jury or his Fourteenth Amendment right to due process. Id., at 86-91. We encountered a similar situation in Martinez-Salazar and reached the same conclusion. Martinez-Salazar, who was tried in federal court, was entitled to exercise peremptory challenges pursuant to Federal Rule of Criminal Procedure 24(b). His decision to use one of his peremptory challenges to cure the trial court’s erroneous denial of a for-cause challenge, we held, did not impair his rights under that Rule. “[A] principal reason for peremptories,” we explained, is “to help secure the constitutional guarantee of trial by an impartial jury.” 528 U. S., at 316. Having “received precisely what federal law provided,” and having been tried “by a jury on which no biased juror sat,” Martinez-Salazar could not “tenably assert any violation of his... right to due process.” Id., at 307, 317. Rivera’s efforts to distinguish Ross and Martinez-Salazar are unavailing. First, Rivera observes, the defendants in Ross and Martinez-Salazar did not challenge any of the jurors who were in fact seated. In contrast, Rivera attempted to exercise a peremptory challenge against a specific person — Gomez—whom he perceived to be unfavorable to his cause. But, as Rivera recognizes, neither Gomez nor any other member of his jury was removable for cause. See Tr. of Oral Arg. 9. Thus, like the juries in Ross and Martinez-Salazar, Rivera’s jury was impartial for Sixth Amendment purposes. Rivera suggests that due process concerns persist because Gomez knew he did not want her on the panel. Gomez, however, was not privy to the in camera discussions concerning Rivera’s attempt to exercise a peremptory strike against her. See supra, at 153. We reject the notion that a juror is constitutionally disqualified whenever she is aware that a party has challenged her. Were the rule otherwise, a party could circumvent Batson by insisting in open court that a trial court dismiss a juror even though the party’s peremptory challenge was discriminatory. Or a party could obtain a juror’s dismissal simply by making in her presence a baseless for-cause challenge. Due process does not require such counterintuitive results. Second, it is not constitutionally significant that the seating of Gomez over Rivera’s peremptory challenge was at odds with state law. The defendants in Ross and Martinez-Salazar, Rivera emphasizes, were not denied their peremptory challenge rights under applicable law — state law in Ross and the Federal Rules of Criminal Procedure in Martinez-Salazar. But as we have already explained, supra, at 157-159, errors of state law do not automatically become violations of due process. As in Ross and Martinez-Salazar, there is no suggestion here that the trial judge repeatedly or deliberately misapplied the law or acted in an arbitrary or irrational manner. Martinez-Salazar, 528 U. S., at 316; Ross, 487 U. S., at 91, n. 5. Rather, the trial judge’s conduct reflected a good-faith, if arguably overzealous, effort to enforce the antidiscrimination requirements of our Batson-related precedents. To hold that a one-time, good-faith misapplication of Batson violates due process would likely discourage trial courts and prosecutors from policing a criminal defendant’s discriminatory use of peremptory challenges. The Fourteenth Amendment does not compel such a tradeoff. Rivera insists that, even without a constitutional violation, the deprivation of a state-provided peremptory challenge requires reversal as a matter of federal law. We disagree. Rivera relies in part on Swain, 380 U. S. 202, which suggested that “[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice.” Id., at 219. We disavowed this statement in Martinez-Salazar, observing, albeit in dicta, “that the oft-quoted language in Swain was not only unnecessary to the decision in that case . . . but was founded on a series of our early cases decided long before the adoption of harmless-error review.” 528 U. S., at 317, n. 4. As our recent decisions make clear, we typically designate an error as “structural,” therefore “requiring] automatic reversal,” only when “the error ‘necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’” Recuenco, 548 U. S., at 218-219 (quoting Neder, 527 U. S., at 9). The mistaken denial of a state-provided peremptory challenge does not, at least in the circumstances we confront here, constitute an error of that character. The automatic reversal precedents Rivera cites are inapposite. One set of cases involves constitutional errors concerning the qualification of the jury or judge. In Batson, for example, we held that the unlawful exclusion of jurors based on race requires reversal because it “violates a defendant’s right to equal protection,” “unconstitutionally discriminate[s] against the excluded juror,” and “undermine[s] public confidence in the fairness of our system of justice.” 476 U. S., at 86, 87. Similarly, dismissal of a juror in violation of Witherspoon v. Illinois, 391 U. S. 510 (1968), we have held, is constitutional error that requires vacation of a death sentence. See Gray v. Mississippi, 481 U. S. 648 (1987). See also Gomez v. United States, 490 U. S. 858, 876 (1989) (“Among those basic fair trial rights that can never be treated as harmless is a defendant’s right to an impartial adjudicator, be it judge or jury.” (internal quotation marks omitted)). A second set of cases involves circumstances in which federal judges or tribunals lacked statutory authority to adjudicate the controversy. We have held the resulting judgment in such cases invalid as a matter of federal law. See, e. g., Nguyen v. United States, 539 U. S. 69 (2003); Wingo v. Wedding, 418 U. S. 461 (1974). Nothing in these decisions suggests that federal law renders state-court judgments void whenever there is a state-law defect in a tribunal’s composition. Absent a federal constitutional violation, States retain the prerogative to decide whether such errors deprive a tribunal of its lawful authority and thus require automatic reversal. States are free to decide, as a matter of state law, that a trial court’s mistaken denial of a peremptory challenge is reversible error per se. Or they may conclude, as the Supreme Court of Illinois implicitly did here, that the improper seating of a competent and. unbiased juror does not convert the jury into an ultra vires tribunal; therefore the error could rank as harmless under state law. In sum, Rivera received precisely what due process required: a fair trial before an impartial and properly instructed jury, which found him guilty of every element of the charged offense. * * * For the reasons stated, the judgment of the Supreme Court of Illinois is Affirmed. See Dept. of Justice, Bureau of Justice Statistics, State Court Organization 2004, pp. 228-232 (2006) (Table 41), http://www.ojp.usdoj.gov/bjs/pub/ pdf/sco04.pdf (as visited Mar. 27, 2009, and in Clerk of Court’s case file) (detailing peremptory challenge rules by State). Under Witherspoon v. Illinois, 391 U. S. 510 (1968), “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Id., at 522. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Stevens delivered the opinion of the Court. Article I, §2, of the Constitution requires apportionment of Representatives among the several States “according to their respective Numbers.” An Act of Congress passed in 1941 provides that after each decennial census “the method known as the method of equal proportions” shall be used to determine the number of Representatives to which each State is entitled. In this case a three-judge District Court held that statute unconstitutional because it found that the method of equal proportions resulted in an unjustified deviation from the ideal of equal representation. The Government’s appeal from that holding requires us to consider the standard that governs the apportionment of Representatives among the several States. In view of the importance of the issue and its significance in this year’s congressional and Presidential elections, we noted probable jurisdiction and ordered expedited briefing and argument. 502 U. S. 1012 (1991). We now reverse. I-H The 1990 census revealed that the population of certain States, particularly California, Florida, and Texas, had increased more rapidly than the national average. The application of the method of equal proportions to the 1990 census caused 8 States to gain a total of 19 additional seats in the House of Representatives and 13 States to lose an equal number. Montana was one of those States. Its loss of one seat cut its delegation in half and precipitated this litigation. According to the 1990 census, the population of the 50 States that elect the members of the House of Representatives is 249,022,783. The average size of the 435 congressional districts is 572,466. Montana’s population of 803,655 forms a single congressional district that is 231,189 persons larger than the ideal congressional district. If it had retained its two districts, each would have been 170,638 persons smaller than the ideal district. In terms of absolute difference, each of the two districts would have been closer to ideal size than the single congressional district. The State of Montana, its Governor, Attorney General, and Secretary of State, and the State’s two Senators and Representatives (hereinafter collectively referred to as Montana) filed suit against appropriate federal defendants (the Government) in the United States District Court for the District of Montana, asserting that Montana was entitled to retain its two seats. They alleged that the existing apportionment method violates Article I, § 2, of the Constitution because it “does not achieve the greatest possible equality in the number of individuals per representative” and also violates Article I, § 2, and Article I, § 7, because reapportionment is effected “through application of a mathematical formula by the Department of Commerce and the automatic transmittal of the results to the states” rather than by legislation on which Members of Congress vote in the normal manner. A three-judge District Court, convened pursuant to 28 U. S. C. § 2284, granted Montana’s motion for summary judgment on the first claim. The majority of the three-judge District Court decided that the principle of equal representation for equal numbers of people that was applied to intrastate districting in Wesberry v. Sanders, 376 U. S. 1 (1964), should also be applied to the apportionment of seats among the States. Under that standard the only population variances that are acceptable are those that “are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown,” Kirkpatrick v. Preisler, 394 U. S. 526, 531 (1969). The District Court held that the variance between the population of Montana's single district and the ideal district could not be justified under that standard. The majority refused to accord deference to the congressional decision to adopt the method of equal proportions in 1941 because that decision was made without the benefit of this Court’s later jurisprudence adopting the “one-person, one-vote” rule. Accordingly, the District Court entered a judgment declaring the statute void and enjoining the Government from effecting any reapportionment of the House of Representatives pursuant to the method of equal proportions. Circuit Judge O’Scannlain dissented. After noting that Congress has used four different apportionment formulas during the country’s history, and that it is not possible to create 435 districts of equal size when each district must be located entirely within a single State, he concluded that the goal of any apportionment formula must be a “ ‘practical approximation’” to a population-based allocation. He analyzed the two formulae proposed by Montana and concluded that the State had failed to demonstrate that either was better than the one that had been chosen by Congress. H-1 HH The general admonition in Article I, § 2, that Representatives shall be apportioned among the several States “according to their respective Numbers” is constrained by three requirements. The number of Representatives shall not exceed one for every 30,000 persons; each State shall have at least one Representative; and district boundaries may not cross state lines. Although the text of Article I determined the original apportionment that the Framers had agreed upon, it did not explain how that specific allocation had been made. When Congress first confronted the task of apportionment after the census of 1790 (and after Vermont and Kentucky had been admitted to the Union), it considered using the constitutional minimum of 30,000 persons as the size of each district. Dividing that number into the total population of 3,615,920 indicated that the House of Representatives should contain 120 members. When the number 30,000 was divided into the population of individual States, each quotient was a whole number with a fractional remainder. Thus, the use of the 30,000 divisor for Connecticut’s population of 236,841 indicated that it should have 7.89 Representatives, while Rhode Island, with a population of 68,446, should have 2.28 Representatives. Because each State must be represented by a whole number of legislators, it was necessary either to disregard fractional remainders entirely or to treat some or all of them as equal to a whole Representative. In the first apportionment bill passed by Congress, an additional Representative was assigned to the nine States whose quotas had the highest fractional remainders. Thus, Connecticut’s quota of 7.89 gave it 8 and Rhode Island’s smaller remainder was disregarded, giving it only 2. Although that method was supported by Alexander Hamilton, Thomas Jefferson persuaded President Washington to veto the bill, in part because its allocation of eight Representatives to Connecticut exceeded the constitutional limit of one for every 30,000 persons. In response to that veto, Congress adopted a proposal sponsored by Thomas Jefferson that disregarded fractional remainders entirely (thus giving Connecticut only seven Representatives). To overcome the basis for the veto, the size of the House was reduced from 120 to 105 members, giving each Representative an approximate constituency of 33,000 instead of 30,000 persons. Although both the total number of Representatives and the size of their districts increased, Jefferson’s method of disregarding fractional remainders was used after each of the next four censuses. Today mathematicians sometimes refer to that method as the “method of greatest divisors,” and suggest that it tends to favor large States over smaller States. In 1832, Congress considered, but did not adopt, a proposal sponsored by John Quincy Adams that was the exact opposite of the Jefferson method. Instead of disregarding fractional remainders, Adams would have treated every fraction as a unit. Thus, using the former example as a hypothetical, both Connecticut and Rhode Island would have received one more Representative under the Adams method than they actually received under the Jefferson method. The Adams method is sometimes described as the “method of smallest divisors” and is said to favor the smaller States. It has never been endorsed by Congress. In 1842, Congress abandoned the Jefferson method in favor of an approach supported by Senator Daniel Webster. The Webster method took account of fractional remainders that were greater than one-half by allocating “one additional representative for each State having a fraction greater than one moiety.” Thus, if that method had been used in 1790, Connecticut’s quota of 7.89 would have entitled it to 8 Representatives, whereas Rhode Island, with a quota of 2.28, would have received only 2. The Webster method is also described as the “method of major fractions.” In 1850, Congress enacted legislation sponsored by Representative Vinton endorsing the approach that had been sponsored by Alexander Hamilton after the first census. Although this method was used during the balance of the 19th century, it occasionally seemed to produce paradoxical results. Congress rejected it in 1911, reverting to the Webster method. In that year Congress also passed legislation that ultimately fixed the number of Representatives at 4S5. After the 1920 census Congress failed to pass a reapportionment Act, but debates over the proper method of apportionment ultimately led to a request to the National Academy of Sciences to appoint a committee of experts to review the subject. That committee, composed of respected mathematicians, recommended the adoption of the “method of equal proportions.” Congress used that method in its apportionment after the 1930 census, and formally adopted it in the 1941 statute at issue in this case. The report of the National Academy of Sciences committee noted that Congress had properly rejected the Hamilton/ Vinton method, and concluded that the use of only five methods could lead to a workable solution of the fractional remainder problem. In the opinion of the committee members, given the fact that it is impossible for all States to have districts of the same size, the best method was the one that minimized the discrepancy between the size of the districts in any pair of States. Under their test of fairness, a method was satisfactory if, for any pair of States, the transfer of one Representative would not decrease the discrepancy between those States’ districts. The choice of a method depended on how one decided to measure the discrepancy between district sizes. Each of the five methods could be described as the “best” in the sense of minimizing the discrepancy between districts, depending on the discrepancy measure selected. The method of the harmonic mean, for example, yielded the fairest apportionment if the discrepancy was measured by the absolute difference between the number of persons per Representative. The method of major fractions was the best method if the discrepancy was measured by the absolute difference between the number of Representatives per person (also known as each person’s “share” of a Representative). The method of equal proportions produced the fairest apportionment if the discrepancy was measured by the “relative difference” in either the size of the district or the share of a Representative. The report concluded by endorsing the method of equal proportions. The committee apparently preferred this method for two reasons. First, the method of equal proportions minimized the relative difference both between the size of congressional districts and between the number of Representatives per person. Second, in comparison with the other four methods considered, this method occupied an intermediate position in terms of favoring small States over large States: It favored small States more than major fractions and greatest divisors, but not as much as smallest divisors or the harmonic mean. If either the method of smallest divisors or the method of the harmonic mean, also known as the “Dean Method,” had been used after the 1990 census, Montana would have received a second seat. Under the method of equal proportions, which was actually used, five other States had stronger claims to an additional seat because Montana’s claim to a second seat was the 441st on the equal proportions “priority list,” see n. 26, supra? Montana would not have received a second seat under either the method of major fractions or greatest divisors. Ill The Government argues that Congress’ selection of any of the alternative apportionment methods involved in this litigation is not subject to judicial review. Relying principally on Baker v. Carr, 369 U. S. 186 (1962), the Government contends that the choice among these methods presents a “political question” not amenable to judicial resolution. In Baker v. Carr, after an extensive review of our prior cases involving political questions, we concluded: “It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unqúestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. “Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence. The doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’ The courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority.” Id., at 217. The Government insists that each of the factors identified in Baker supports the conclusion that the question presented here is committed to the “political branches” to the exclusion of the Judiciary. Significantly, however, the Government does not suggest that all congressional decisions relating to apportionment are beyond judicial review. The Government does not, for instance, dispute that a court could set aside an apportionment plan that violated the constitutional requirement that “[t]he number of Representatives shall not exceed one for every thirty Thousand.” Further, with respect to the provision that Representatives “shall be apportioned among the several States... according to their respective Numbers,” the Government acknowledges that Congress has a judicially enforceable obligation to select an apportionment plan that is related to population. The gravamen of the Government’s argument is that the District Court erred in concluding that the Constitution imposes the more rigorous requirement of greatest possible equality in the size of congressional districts, as measured by absolute deviation from ideal district size. The Government then does not dispute Montana’s contention that the Constitution places substantive limitations on Congress’ apportionment power and that violations of those limitations would present a justiciable controversy. Where the parties differ is in their understanding of the content of these limitations. In short, the Government takes issue not with the existence of a judicially enforceable right, but with the definition of such a right. When a court concludes that an issue presents a nonjusti-ciable political question, it declines to address the merits of that issue. See Gilligan v. Morgan, 413 U. S. 1, 10-12 (1973); Baker v. Carr, 369 U. S., at 197; see also Colegrove v. Green, 328 U. S. 549, 552-556 (1946) (plurality opinion). In invoking the political question doctrine, a court acknowledges the possibility that a constitutional provision may not be judicially enforceable. Such a decision is of course very different from determining that specific congressional action does not violate the Constitution. That determination is a decision on the merits that reflects the exercise of judicial review, rather than the abstention from judicial review that would be appropriate in the case of a true political question. The case before us today is “political” in the same sense that Baker v. Carr was a “political case.” 369 U. S., at 217. It raises an issue of great importance to the political branches. The issue has motivated partisan and sectional debate during important portions of our history. Nevertheless, the reasons that supported the justiciability of challenges to state legislative districts, as in Baker v. Carr, as well as state districting decisions relating to the election of Members of Congress, see, e. g., Wesberry v. Sanders, 376 U. S. 1 (1964); Karcher v. Daggett, 462 U. S. 725 (1983), apply with equal force to the issues presented by this litigation. The controversy between Montana and the Government turns on the proper interpretation of the relevant constitutional provisions. As our previous rejection of the political question doctrine in this context should make clear, the interpretation of the apportionment provisions of the Constitution is well within the competence of the Judiciary. See Davis v. Bandemer, 478 U. S. 109, 123 (1986); Baker v. Carr, 369 U. S., at 234-237; cf. Gilligan v. Morgan, 413 U. S., at 11. The political question doctrine presents no bar to our reaching the merits of this dispute and deciding whether the District Court correctly construed the constitutional provisions at issue. Our previous apportionment cases concerned States’ decisions creating legislative districts; today we review the actions of Congress. Respect for a coordinate branch of Government raises special concerns not present in our prior cases, but those concerns relate to the merits of the controversy rather than to our power to resolve it. As the issue is properly raised in a case otherwise unquestionably within our jurisdiction, we must determine whether Congress exercised its apportionment authority within the limits dictated by the Constitution. See INS v. Chadha, 462 U. S. 919, 940-941 (1983); Powell v. McCormack, 395 U. S. 486, 521 (1969). Without the need for another exploration of the Baker factors, it suffices to say that, as in Baker itself and the apportionment cases that followed, the political question doctrine does not place this kind of constitutional interpretation outside the proper domain of the Judiciary. <1 In Wesberry v. Sanders, 376 U. S. 1 (1964), the Court considered the claim of voters in Fulton County, Georgia, that the disparity between the size of their congressional district (823,680) and the average size of the 10 districts in Georgia (394,312) deprived them of the right “to have their votes for Congressmen given the same weight as the votes of other Georgians.” Id., at 3. This Court upheld the claim, concluding that Article I, § 2, had established a “high standard of justice and common sense” for the apportionment of congressional districts: “equal representation for equal numbers of people.” 376 U. S., at 18. The constitutional command that Representatives be chosen “by the People of the several States” meant that “as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.” Id., at 7-8. Writing for the Court, Justice Black explained: “It would defeat the principle solemnly embodied in the Great Compromise — equal representation in the House for equal numbers of people — for us to hold that, within the States, legislatures may draw the lines of congressional districts in such a way as to give some voters a greater voice in choosing a Congressman than others. The House of Representatives, the Convention agreed, was to represent the people as individuals, and on a basis of complete equality for each voter.” Id., at 14. In subsequent cases, the Court interpreted that standard as imposing a burden on the States to “make a good-faith effort to achieve precise mathematical equality.” Kirkpatrick v. Preisler, 394 U. S., at 530-531; see also Karcher v. Daggett, 462 U. S., at 730. Our cases applying the Wesberry standard have all involved disparities in the size of voting districts within the same State. In this case, however, Montana contends, and a majority of the District Court agreed, that the Wesberry standard also applies to apportionment decisions made by Congress and that it was violated because of an unjustified variance between the population of Montana’s single district and the ideal district size. Montana’s evidence demonstrated that if Congress had used the method of the harmonic mean, sometimes referred to as the “Dean Method,” instead of the method of equal proportions, sometimes called the “Hill Method,” to apportion the districts, 48 of the States would have received the same number of Representatives, while Washington would have received one less — eight instead of nine — and Montana would have received one more. Under an apportionment undertaken according to the Hill Method, the absolute difference between the population of Montana’s single district (803,655) and the ideal (572,466) is 231,189; the difference between the average Washington district (543,105) and the ideal is 29,361. Hence, the sum of the differences between the average and the ideal district size in the two States is 260,550. Under the Dean Method, Montana would have two districts with an average population of 401,838, representing a deviation from the ideal of 170,638; Washington would then have eight districts averaging 610,993, which is a deviation of 38,527 from the ideal district size. The sum of the deviations from the ideal in the two States would thus be 209,165 under the Dean Method (harmonic mean), while it is 260,550 under the Hill Method (equal proportions). More generally, Montana emphasizes that the Dean Method is the best method for minimizing the absolute deviations from ideal district size. There is some force to the argument that the same historical insights that informed our construction of Article I, § 2, in the context of intrastate districting should apply here as well. As we interpreted the constitutional command that Representatives be chosen “by the People of the several States” to require the States to pursue equality in representation, we might well find that the requirement that Representatives be apportioned among the several States “according to their respective Numbers” would also embody the same principle of equality. Yet it is by no means clear that the facts here establish a violation of the Wesberry standard. In cases involving variances within a State, changes in the absolute differences from the ideal produce parallel changes in the relative differences. Within a State, there is no theoretical incompatibility entailed in minimizing both the absolute and the relative differences. In this case, in contrast, the reduction in the absolute difference between the size of Montana’s district and the size of the ideal district has the effect of increasing the variance in the relative difference between the ideal and the size of the districts in both Montana and Washington. Moreover, whereas reductions in the variances among districts within a given State bring all of the affected districts closer to the ideal, in this case a change that would bring Montana closer to the ideal pushes the Washington districts away from that ideal. What is the better measure of inequality — absolute difference in district size, absolute difference in share of a Representative, or relative difference in district size or share? Neither mathematical analysis nor constitutional interpretation provides a conclusive answer. In none of these alternative measures of inequality do we find a substantive principle of commanding constitutional significance. The polestar of equal representation does not provide sufficient guidance to allow us to discern a single constitutionally permissible course. A State’s compliance with Wesberry’s “high standard of justice and common sense” begins with a good-faith effort to produce complete equality for each voter. As our cases involving variances of only a fraction of one percent demonstrate, that goal is realistic and appropriate for state districting decisions. See Karcher v. Daggett, 462 U. S., at 730-743. In this case, however, whether Montana has one district or two, its variance from the ideal will exceed 40 percent. The constitutional guarantee of a minimum of one Representative for each State inexorably compels a significant departure from the ideal. In Alaska, Vermont, and Wyoming, where the statewide districts are less populous than the ideal district, every vote is more valuable than the national average. Moreover, the need to allocate a fixed number of indivisible Representatives among 50 States of varying populations makes it virtually impossible to have the same size district in any pair of States, let alone in all 50. Accordingly, although “common sense” supports a test requiring “a good-faith effort to achieve precise mathematical equality” within each State, Kirkpatrick v. Preisler, 394 U. S., at 530-531, the constraints imposed by Article I, §2, itself make that goal illusory for the Nation as a whole. This commonsense understanding of a characteristic of our Federal Government must have been obvious to the masters of compromise who framed our Constitution. The spirit of compromise that provided two Senators for every State and Representatives of the People “according to their respective Numbers” in the House must also have motivated the original allocation of Representatives specified in Article I, §2, itself. Today, as then, some compromise between the interests of larger and smaller States must be made to achieve a fair apportionment for the entire country. The constitutional framework that generated the need for compromise in the apportionment process must also delegate to Congress a measure of discretion that is broader than that accorded to the States in the much easier task of determining district sizes within state borders. Article I, § 8, cl. 18, expressly authorizes Congress to enact legislation that “shall be necessary and proper” to carry out its delegated responsibilities. Its apparently good-faith choice of a method of apportionment of Representatives among the several States “according to their respective Numbers” commands far more deference than a state districting decision that is capable of being reviewed under a relatively rigid'' mathematical standard. The District Court suggested that the automatic character of the application of the method of equal proportions was inconsistent with Congress’ responsibility to make a fresh legislative decision after each census. We find no merit in this suggestion. Indeed, if a set formula is otherwise constitutional, it seems to us that the use of a procedure that is administered efficiently and that avoids partisan controversy supports the legitimacy of congressional action, rather than undermining it. To the extent that the potentially divisive and complex issues associated with apportionment can be narrowed by the adoption of both procedural and substantive rules that are consistently applied year after year, the public is well served, provided, of course, that any such rule remains open to challenge or change at any time. We see no constitutional obstacle preventing Congress from adopting such a sensible procedure. The decision to adopt the method of equal proportions was made by Congress after decades of experience, experimentation, and debate about the substance of the constitutional requirement. Independent scholars supported both the basic decision to adopt a regular procedure to be followed after each census and the particular decision to use the method of equal proportions. For a half century the results of that method have been accepted by the States and the Nation. That history supports our conclusion that Congress had ample power to enact the statutory procedure in 1941 and to apply the method of equal proportions after the 1990 census. The judgment of the District Court is reversed. It is so ordered. Article I, § 2, originally provided that “Representatives... shall be apportioned among the several States... according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” Section 2 of the Fourteenth Amendment modified this provision by establishing that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” 55 Stat. 761-762; 2 U. S. C. §2a(a). 775 F. Supp. 1358, 1366 (Mont. 1991). Three States, California, Florida, and Texas, accounted for 14 of those gains; five States, Arizona, Georgia, North Carolina, Virginia, and Washington, each gained one seat. 2 App. 20. New York lost three seats; Illinois, Michigan, Ohio, and Pennsylvania each lost two seats; and Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Montana, New Jersey, and West Virginia each lost one seat. Ibid. See ibid. The three state officials brought suit on behalf of all voters in Montana. Complaint ¶ 19. Id., ¶¶ 28-29. Having granted summary judgment on the first claim, the District Court found it unnecessary to reach the merits of the claim relating to the automatic method of apportionment. 776 F. Supp., at 1366. Ibid. Id., at 1369 (quoting 2 J. Story, Commentaries on the Constitution of the United States § 676 (1833)). Montana alleged that the “method of the harmonic mean” or the “method of smallest divisors” would yield a fairer result. Subsequent to the decision below, a District Court in Massachusetts rejected a challenge to Congress’ adoption of the method of equal proportions. In that litigation, Massachusetts plaintiffs asserted that the superiority of another method, that of “major fractions,” demonstrated that the method of equal proportions was unconstitutional. Massachusetts v. Mosbacher, Civ. Action No. 91-11234-WD (Mass., Feb. 20,1992). The first and second requirements are set forth explicitly in Article I, §2, of the Constitution. The requirement that districts not cross state borders appears to be implicit in the text and has been recognized by continuous historical practice. See 775 F. Supp., at 1365, n. 4; id., at 1368 (O’Scannlain, J., dissenting). Section 2, cl. 3, required an enumeration of the population to be made within three years after the first meeting of Congress and provided that “until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.” See M. Balinski & H. Young, Fair Representation, Meeting the Ideal of One Man, One Vote 10-13 (1982) (hereinafter Balinski & Young). See id., at 16-22. President Washington’s veto message read as follows: “Gentlemen of the House of Representatives: “I have maturely considered the act passed by the two Houses entitled ‘An act for an Apportionment of Representatives among the several States, according to the first Enumeration;’ and I return it to your House, wherein it originated, with the following objections: “First. The Constitution has prescribed that Representatives shall be apportioned among the several States according to their respective numbers; and there is no one proportion or divisor which, applied to the respective numbers of the States, will yield the number and allotment of Representatives proposed by the bill. “Second. The Constitution has also provided that the number of Representatives shall not exceed one for every thirty thousand; which restriction is, by the context, and by fair and obvious construction, to be applied to the separate and respective numbers of the States; and the bill has allotted to eight of the States more than one for every thirty thousand, “G. Washington” 3 Annals of Cong. 539 (1792). The 1802 apportionment Act continued the ratio of 33,000, which then corresponded to a House of 141 Members. Act of Jan. 14, 1802, 2 Stat. 128. The third apportionment established a ratio of 35,000, which provided a House of 181 Members. Act of Dec. 21,1811, 2 Stat. 669. The 1822 apportionment Act increased the ratio to 40,000 and the size of the House to 213. Act of Mar. 7,1822, 3 Stat. 651. The 1832 apportionment Act provided for 240 districts representing an average of 47,700 persons each. Act of May 22,1832, ch. 91,4 Stat. 516. See generally L. Schmeek-ebier, Congressional Apportionment 111-113 (1941). See Balinski & Young 73-75. Ibid. Act of June 25,1842, 5 Stat. 491. Act of May 23, 1850, §§24-26, 9 Stat. 432-433. Under the Hamilton/ Vinton method, the Nation’s population was divided by the size of the House (set at 233 in 1850) to determine the ratio of persons per Representative. This ratio was then divided into the population of a State to establish its quota. Each State would receive the number of Representatives corresponding to the whole number of the quota (ignoring the fractional remainders). The remaining seats necessary to bring the nationwide total to the proper size (233 in 1850) would then be distributed to the States with the largest fractional remainders. In practice, the method was not strictly followed. See Balinski & Young 37; Chafee, Congressional Reapportionment, 42 Harv. L. Rev. 1015, 1025 (1929). The Hamilton/Vinton method was subject to the “Alabama paradox,” a mathematical phenomenon in which a State’s number of Representatives may decrease when the size of the House is increased.- See Balinski & Young 38-40; Chafee, Congressional Reapportionment, 42 Harv. L. Rev., at 1026. The 1911 statute actually specified 433 Representatives but authorized an additional Representative for Arizona and New Mexico when they were admitted to the Union. See 37 Stat. 13. Additional Representatives were also authorized when Alaska and Hawaii were admitted to the Union in 1959, but the number thereafter reverted to 435, where it has remained ever since. See 72 Stat.' 345; 73 Stat. 8. Act of Nov. 15,1941, § 1,55 Stat. 761-762,2 U. S. C. § 2a. That Act also made the reapportionment process self-executing, eliminating the need for Congress to enact an apportionment Act after each decennial census: “(a) On the first day, or within one week thereafter, of the first regular session of the Eighty-second Congress and of each fifth Congress thereafter, the President shall transmit to the Congress a statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained under the seventeenth and each subsequent decennial census of the population, and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions, no State to receive less than one Member. “(b)... It shall be the duty of the Clerk of the House of Representatives, within fifteen calendar days after the receipt of such statement, to send to the executive of each State a certificate of the number of Representatives to which such State is entitled under this section.” The five were the “method of smallest divisors,” the “method of the harmonic mean,” the “method of equal proportions,” the “method of major fractions,” and the “method of greatest divisors.” 1 App. 17. Each of the methods corresponds to a different formula for producing a “priority list.” A priority list is the mechanical method used in modern apportionments to translate a particular method of apportionment into a particular assignment of Representatives. The technical process of forming the priority list proceeds as follows. First, one Representative is assigned to each State to satisfy the constitutional guarantee. Second, the population of each State is divided by a certain tabulated series of divisors. Third, the quotients for all the States are arranged in a single series in order of size, beginning with the largest quotient, for the 51st Member of the House. This forms the priority list. The series of quotients is different for each of the five apportionment methods. See Chafee, Congressional Reapportionment, 42 Harv. L. Rev., at 1029, n. 39. The following are the divisors by which a State’s population is divided under each method (“n” is the number of the State’s next seat): Smallest Divisors: n— 1 Harmonic Mean: (n-l) + n Equal Proport Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam: The judgment is affirmed by an equally divided Court. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Stewart delivered the opinion of the Court. From 1959 to 1969 the respondent, Robert Sindermann, was a teacher in the state college system of the State of Texas. After teaching for two years at the University of Texas and for four years at San Antonio Junior College, he became a professor of Government and Social Science at Odessa Junior College in 1965. He was employed at the college for four successive years, under a series of one-year contracts. He was successful enough to be appointed, for a time, the cochairman of his department. During the 1968-1969 academic year, however, controversy arose between the respondent and the college administration. The respondent was elected president of the Texas Junior College Teachers Association. In this capacity, he left his teaching duties on several occasions to testify before committees of the Texas Legislature, and he became involved in public disagreements with the policies of the college’s Board of Regents. In particular, he aligned himself with a group advocating the elevation of the college to four-year status — a change opposed by the Regents. And, on one occasion, a newspaper advertisement appeared over his name that was highly critical of the Regents. Finally, in May 1969, the respondent’s one-year employment contract terminated and the Board of Regents voted not to offer him a new contract for the next academic year. The Regents issued a press release setting forth allegations of the respondent’s insubordination. But they provided him no official statement of the reasons for the nonrenewal of his contract. And they allowed him no opportunity for a hearing to challenge the basis of the nonrenewal. The respondent then brought this action in Federal District Court. He alleged primarily that the Regents’ decision not to rehire him was based on his public criticism of the policies of the college administration and thus infringed his right to freedom of speech. He also alleged that their failure to provide him an opportunity for a hearing violated the Fourteenth Amendment’s guarantee of procedural due process. The petitioners— members of the Board of Regents and the president of the college — denied that their decision was made in retaliation for the respondent’s public criticism and argued that they had no obligation to provide a hearing. On the basis of these bare pleadings and three brief affidavits filed by the respondent, the District Court granted summary judgment for the petitioners, It concluded that the respondent had “no cause of action against the [petitioners] since his contract of employment terminated May 31, 1969, and Odessa Junior College has not adopted the tenure system.” The Court of Appeals reversed the judgment of the District Court. 430 F. 2d 939. First, it held that, despite the respondent's lack of tenure, the nonrenewal of his contract would violate the Fourteenth Amendment if it in fact was based on his protected free speech. Since the actual reason for the Regents' decision was “in total dispute” in the pleadings, the court remanded the case for a full hearing on this contested issue of fact. Id., at 942-943. Second, the Court of Appeals held that, despite the respondent’s lack of tenure, the failure to allow him an opportunity for a hearing would violate the constitutional guarantee of procedural due process if the respondent could show that he had an “expectancy” of re-employment. It, therefore, ordered that this issue of fact also be aired upon remand. Id., at 943-944. We granted a writ of certiorari, 403 U. S. 917, and we have considered this case along with Board of Regents v. Roth, ante, p. 564. I The first question presented is whether the respondent’s lack of a contractual or tenure right to re-employment, taken alone, defeats his claim that the nonrenewal of his contract violated the First and Fourteenth Amendments. We hold that it does not. For at least a quarter-century, this Court has made clear that even though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests— especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly.” Speiser v. Randall, 357 U. S. 513, 526. Such interference with constitutional rights is impermissible. We have applied this general principle to denials of tax exemptions, Speiser v. Randall, supra, unemployment benefits, Sherbert v. Verner, 374 U. S. 398, 404—405, and welfare payments, Shapiro v. Thompson, 394 U. S. 618, 627 n. 6; Graham v. Richardson, 403 U. S. 365, 374. But, most often, we have applied the principle to denials of public employment. United Public Workers v. Mitchell, 330 U. S. 75, 100; Wieman v. Updegraff, 344 U. S. 183, 192; Shelton v. Tucker, 364 U. S. 479, 485-486; Torcaso v. Watkins, 367 U. S. 488, 495-496; Cafeteria Workers v. McElroy, 367 U. S. 886, 894; Cramp v. Board of Public Instruction, 368 U. S. 278, 288; Baggett v. Bullitt, 377 U. S. 360; Elfbrandt v. Russell, 384 U. S. 11, 17; Keyishian v. Board of Regents, 385 U. S. 589, 605-606; Whitehill v. Elkins, 389 U. S. 54; United States v. Robel, 389 U. S. 258; Pickering v. Board of Education, 391 U. S. 563, 568. We have applied the principle regardless of the public employee’s contractual or other claim to a job. Compare Pickering v. Board of Education, supra, with Shelton v. Tucker, supra. Thus, the respondent’s lack of a contractual or tenure “right” to re-employment for the 1969-1970 academic year is immaterial to his free speech claim. Indeed, twice before, this Court has specifically held that the nonrenewal of a nontenured public school teacher's one-year contract may not be predicated on his exercise of First and Fourteenth Amendment rights. Shelton v. Tucker, supra; Keyishian v. Board of Regents, supra. We reaffirm those holdings here. In this case, of course, the respondent has yet to show that the decision not to renew his contract was, in fact, made in retaliation for his exercise of the constitutional right of free speech. The District Court foreclosed any opportunity to make this showing when it granted summary judgment. Hence, we cannot now hold that the Board of Regents’ action was invalid. But we agree with the Court of Appeals that there is a genuine dispute as to “whether the college refused to renew the teaching contract on an impermissible basis — as a reprisal for the exercise of constitutionally protected rights.” 430 F. 2d, at 943. The respondent has alleged that his nonretention was based on his testimony before legislative committees and his other public statements critical of the Regents’ policies. And he has alleged that this public criticism was within the First and Fourteenth Amendments’ protection of freedom of speech. Plainly, these allegations present a bona fide constitutional claim. For this Court has held that a teacher’s public criticism of his superiors on matters of public concern may be constitutionally protected and may, therefore, be an impermissible basis for termination of his employment. Pickering v. Board of Education, supra. For this reason we hold that the grant of summary judgment against the respondent, without full exploration of this issue, was improper. II The respondent’s lack of formal contractual or tenure security in continued employment at Odessa Junior College, though irrelevant to his free speech claim, is highly relevant to his procedural due process claim. But it may not be entirely dispositive. We have held today in Board of Regents v. Roth, ante, p. 564, that the Constitution does not require opportunity for a hearing before the nonrenewal of a nontenured teacher’s contract, unless he can show that the decision not to rehire him somehow deprived him of an interest in “liberty” or that he had a “property” interest in continued employment, despite the lack of tenure or a formal contract. In Roth the teacher had not made a showing on either point to justify summary judgment in his favor. Similarly, the respondent here has yet to show that he has been deprived of an interest that could invoke procedural due process protection. As in Roth, the mere showing that he was not rehired in one particular job, without more, did not amount to a showing of a loss of liberty. Nor did it amount to a showing of a loss of property. But the respondent’s allegations — which we must construe most favorably to the respondent at this stage of the litigation — do raise a genuine issue as to his interest in continued employment at Odessa Junior College. He alleged that this interest, though not secured by a formal contractual tenure provision, was secured by a no less binding understanding fostered by the college administration. In particular, the respondent alleged that the college had a de facto tenure program, and that he had tenure under that program. He claimed that he and others legitimately relied upon an unusual provision that had been in the college’s official Faculty Guide for many years: “Teacher Tenure: Odessa College has no tenure system. The Administration of the College wishes the faculty member to feel that he has permanent tenure as long as his teaching services are satisfactory and as long as he displays a cooperative attitude toward his co-workers and his superiors, and as long as he is happy in his work.” Moreover, the respondent claimed legitimate reliance upon guidelines promulgated by the Coordinating Board of the Texas College and University System that provided that a person, like himself, who had been employed as a teacher in the state college and university system for seven years or more has some form of job tenure. Thus, the respondent offered to prove that a teacher with his long period of service at this particular State College had no less a “property” interest in continued employment than a formally tenured teacher at other colleges, and had no less a procedural due process right to a statement of reasons and a hearing before college officials upon their decision not to retain him. We have made clear in Roth, supra, at 571-572, that “property” interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, “property” denotes a broad range of interests that are secured by “existing rules or understandings.” Id., at 577. A person’s interest in a benefit is a “property” interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing. Ibid. A written contract with an explicit tenure provision clearly is evidence of a formal understanding that supports a teacher’s claim of entitlement to continued employment unless sufficient “cause” is shown. Yet absence of such an explicit contractual provision may not always foreclose the possibility that a teacher has a “property” interest in re-employment. For example, the law of contracts in most, if not all, jurisdictions long has employed a process by which agreements, though not formalized in writing, may be “implied.” 3 A. Corbin on Contracts §§ 561-572A (1960). Explicit contractual provisions may be supplemented by other agreements implied from “the promisor's words and conduct in the light of the surrounding circumstances.” Id., at § 562. And, “[t]he meaning of [the promisor's] words and acts is found by relating them to the usage of the past.” Ibid. A teacher, like the respondent, who has held his position for a number of years, might be able to show from the circumstances of this service — and from other relevant facts — that he has a legitimate claim of entitlement to job tenure. Just as this Court has found there to be a “common law of a particular industry or of a particular plant” that may supplement a collective-bargaining agreement, Steelworkers v. Warrior & Gulf Co., 363 U. S. 574, 579, so there may be an unwritten “common law” in a particular university that certain employees shall have the equivalent of tenure. This is particularly likely in a college or university, like Odessa Junior College, that has no explicit tenure system even for senior members of its faculty, but that nonetheless may have created such a system in practice. See C. Byse & L. Joughin, Tenure in American Higher Education 17-28 (1959). In this case, the respondent has alleged the existence of rules and understandings, promulgated and fostered by state officials, that may justify his legitimate claim of entitlement to continued employment absent “sufficient cause.” We disagree with the Court of Appeals insofar as it held that a mere subjective “expectancy” is protected by procedural due process, but we agree that the respondent must be given an opportunity to prove the legitimacy of his claim of such entitlement in light of “the policies and practices of the institution.” 430 F. 2d, at 943. Proof of such a property interest would not, of course, entitle him to reinstatement. But such proof would obligate college officials to grant a hearing at his request, where he could be informed of the grounds for his nonretention and challenge their sufficiency. Therefore, while we do not wholly agree with the opinion of the Court of Appeals, its judgment remanding this case to the District Court is Affirmed. Mr. Justice Powell took no part in the decision of this case. The press release stated, for example, that the respondent had defied his superiors by attending legislative committee meetings when college officials had specifically refused to permit him to leave his classes for that purpose. The petitioners claimed, in their motion for summary judgment, that the decision not to retain the respondent was really based on his insubordinate conduct. See m 1, supra. The petitioners, for whom summary judgment was granted, submitted no affidavits whatever. The respondent’s affidavits were very short and essentially repeated the general allegations of his complaint. The findings and conclusions of the .District Court — only several lines long — are not officially reported. The Court of Appeals suggested that the respondent might have a due process right to some kind of hearing simply if he asserts to college officials that their decision was based on his constitutionally protected conduct. 430 F. 2d, at 944. We have rejected this approach in Board of Regents v. Roth, ante, at 575 n. 14. The relevant portion of the guidelines, adopted as “Policy Paper 1” by the Coordinating Board on October 16, 1967, reads: “A. Tenure “Tenure means assurance to an experienced faculty member that he may expect to continue in his academic position unless adequate cause for dismissal is demonstrated in a fair hearing, following established procedures of due process. “A specific system of faculty tenure undergirds the integrity of each academic institution. In the Texas public colleges and universities, this tenure system should have these components: “(1) Beginning with appointment to the rank of full-time instructor or a higher rank, the probationary period for a faculty member shall not exceed seven years, including within this period appropriate full-time service in all institutions of higher education. This is subject to the provision that when, after a term of probationary service of more than three years in one or more institutions, a faculty member is employed by another institution, it may be agreed in writing that his new appointment is for a probationary period of not more than four years (even though thereby the person’s total probationary period in the academic profession is extended beyond the normal maximum of seven years). “(3) Adequate cause for dismissal for a faculty member with tenure may be established by demonstrating professional incompetence, moral turpitude, or gross neglect of professional responsibilities.” The respondent alleges that, because he has been employed as a “full-time instructor” or professor within the Texas College and University System for 10 years, he should have “tenure” under these provisions. We do not now hold that the respondent has any such legitimate claim of entitlement to job tenure. For “[p]roperty interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . .” Board of Regents v. Roth, supra, at 577. If it is the law of Texas that a teacher in the respondent’s position has no contractual or other claim to job tenure, the respondent’s claim would be defeated. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

D

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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Reed delivered the opinion of the Court. Petitioner was convicted of murder and sentenced to death by the State of Pennsylvania. The crime was committed in January 1948. Petitioner was without counsel when he appeared for arraignment on February 25, 1948. The presiding judge asked a lawyer present in the courtroom to advise petitioner how to plead. This lawyer, who knew nothing about petitioner, advised him to enter a plea of “not guilty.” On September 21, 1948, after several continuances, the District Attorney, together with petitioner’s state-named counsel, who had been appointed after arraignment, and a judge of the sentencing court, agreed that a plea of “guilty” would be substituted for the earlier plea of “not guilty.” This was done so that the State could present its evidence that the crime was first degree murder, and petitioner’s counsel would then have additional time in which to procure out-of-state evidence at State expense to support the contention that petitioner was insane. The State put in its evidence on September 21, 1948. At hearings held on October 28, 1948, and November 5, 1948, defense counsel introduced evidence tending to show that petitioner was insane. The sentencing court was not satisfied by the evidence that petitioner had been insane either at the time of the murder or at any time thereafter, and on February 4, 1949, sentenced him to death. While the docket entries as shown in the trial record differ from the notes on the indictment, as to whether the sentencing court found petitioner guilty of first degree murder on September 21, 1948, or did not so find until February 4, 1949, the difference is immaterial. According to the entries written in longhand on petitioner’s indictment (192 F. 2d, at 569), the entry noting the adjudication of guilty of murder in the first degree on February 4, 1949, is not in proper order. It appears to have been inserted between the entry stating that petitioner had withdrawn his plea of not guilty and entered a plea of guilty on September 21, 1948, and the entry of November 5, 1948, stating that “additional testimony [had been] heard and held under advisement.” If the contested and out-of-order date of “2/4/49” is removed, the notes on the indictment would agree with the docket entry of September 21, 1948, and would read “[A]fter hearing testimony both for the Commonwealth and the defendant.. . the defendant is adjudged guilty of murder in the 1st degree.” Since the entry of September 21, 1948, was made following a plea of guilty and with opportunity for further evidence as to insanity, it was not in any way binding or even persuasive. It was the sentence on February 4, 1949, after the insanity hearing that was the final adjudication. An appeal was taken from this judgment on a full record to the State Supreme Court where it was asserted that it was an abuse of discretion by the sentencing court to have imposed the death sentence in the circumstances of the case. The conviction was affirmed. 362 Pa. 222, 66 A. 2d 764. No effort was made to secure from this Court a writ of certiorari to review that affirmance. Petitioner thereafter filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The petition was denied on the ground that petitioner was not within the jurisdiction of the court at the time the proceeding was instituted. 87 F. Supp. 339. On appeal the denial was affirmed by the Court of Appeals for the Third Circuit. 181 F. 2d 847. No petition for certiorari to review that decision was filed with this Court. A petition for habeas corpus was then filed in the State Supreme Court. This was entertained on the merits and denied on the ground that there was no denial of due process of law and there was “nothing in this record which convinces us that this relator was insane when he committed the murder charged or when he pleaded guilty or at the time he was sentenced to death.” 364 Pa. 93, at 119, 71 A. 2d 107, at 120. Immediately following our denial of a timely petition for certiorari, 340 U. S. 812, petitioner filed a second application for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The District Court dismissed the petition, noting that all the issues presented in the petition had been before the State Supreme Court. 96 F. Supp. 100, 105. On appeal the Court of Appeals for the Third Circuit affirmed. 192 F. 2d 540. We granted certiorari, 343 U. S. 903. The petitions involved in the State habeas corpus proceedings presented the identical due process questions which are before us now, and the complete record of the State trial proceedings — appellate as well as those in State habeas corpus — were before the District Court and the Court of Appeals. The first point we consider is the question of the effect to be given our denial of certiorari in a habeas corpus case. Both the District Court (96 F. Supp. 100, 105) and the Court of Appeals (192 F. 2d 540, 544) concluded that the denial of certiorari in habeas corpus cases means nothing except that certiorari was denied. As the effect of a denial of certiorari was then in doubt, we granted this petition primarily to determine its effect. As this conclusion is spelled out more fully in the opinions in Brown v. Allen, 344 U. S. 443, decided today, the answer is short. Our denial of certiorari in habeas corpus cases is without substantive significance. The next contention of petitioner is that he was denied due process. In substance, this issue presents questions as to (1) whether the State should have allowed him to plead guilty without having first "formally adjudicated the question of his mental competency, and (2) whether it should have permitted him to plead at all to a capital offense without affording him the technical services of a psychiatrist. Petitioner had been committed to an institution for mental patients in New York three years prior to the commission’ of the crime with which he is charged. At the New York institution his disease was diagnosed as dementia praecox. After four months he was discharged as recovered. Later, he voluntarily committed himself to the Philadelphia General Hospital for fear that he might harm someone. Ten days later he was released because there was “no evidence of [his] having any psychosis.” These facts were presented to the trial court prior to sentencing on February 4, 1949. In contending that Pennsylvania denied him due process by convicting him of murder on his plea of guilty without an adjudication or evidence as to his sanity, petitioner points to language used by the State Supreme Court indicating, in his view, a holding of sanity based on the plea of guilty, instead of on evidence. There that court stated that the plea of guilty was an admission of sanity, and that the evidence of petitioner’s mental condition taken by the trial court after the plea of guilty went to the question of the appropriate penalty. The complete answer to petitioner’s contentions, however, is found in the succeeding paragraph where the court said: “If the evidence taken as to the defendant’s mental condition for the purpose of enabling the court to assess the proper punishment, raised a substantial doubt as to Smith’s sanity, it would have been the duty of his counsel to have moved to withdraw the plea of guilty so that a plea of 'not guilty because of insanity’ could be entered. If the trial court had denied this motion the defendant could have taken an exception and on appeal this Court would have decided whether or not the court in denying the motion had abused its discretion.” 364 Pa. 93, at 113, 71 A. 2d 107, at 117. Petitioner furthermore maintains that the sentence imposed violates due process because he was advised to plead “not guilty” at arraignment on the snap advice of a court-designated lawyer who had never before laid eyes on petitioner. As a consequence of this offhand plea of not guilty, petitioner contends he lost his only chance to require that his mental competency be tried at the outset by a jury. Assuming that such a chance was in fact lost, it does not follow that due process was denied. As pointed out above, the Pennsylvania Supreme Court emphasized that even after changing his plea to “guilty” on the advice of counsel familiar with this case, there was still adequate opportunity to withdraw the second plea and substitute a plea of “not guilty because of insanity” had petitioner’s counsel entertained any doubt of his client’s mental competency. 364 Pa., at 113, 71 A. 2d, at 117. When Pennsylvania furnished petitioner counsel for his arraignment, we cannot say his error in advising a “not guilty” plea made all future proceedings unconstitutional when there was ample opportunity to rectify the error, if any there was, by a hearing on insanity. A claim of denial of due process can hardly be predicated upon the failure of a defense move. This brings us to petitioner’s second point: That the assistance of a psychiatrist was necessary to afford him adequate counsel. The record of the trial-court proceedings reveals that on November 5, 1948, a psychiatrist, who had examined petitioner at the court’s request, testified as to petitioner’s sanity at the time of the trial and at the time of the commission of the crime. In addition, on October 28, 1948, two other psychiatrists were called by the defense to testify as to petitioner’s mental competence. On the same day, petitioner’s counsel also introduced various reports and letters dealing with his client’s mental history. On this evidence the court determined his sanity. Petitioner further asserts that he should have been given technical pretrial assistance by the State. Although the trial judge testified that defense counsel made no such request, petitioner here states that the trial court refused to appoint a psychiatrist to make a pretrial examination. We cannot say that the State has that duty by constitutional mandate. See McCarty v. O’Brien, 188 F. 2d 151, 155. As we have shown, the issue of petitioner’s sanity was heard by the trial court. Psychiatrists testified. That suffices. Petitioner’s argument that an insane man may not be executed proceeds on the assumption that he has been found to be insane. The law of Pennsylvania, as announced by the Supreme Court of the State, provides full protection against the execution of the insane. “It is a principle imbedded in the common law— and we administer the common law in Pennsylvania — that no insane person can be tried, sentenced or executed. “A prisoner convicted of murder and under sentence of death is (like the relator in the instant case) still in the hands of the law and in a proper case the judiciary of the State can intervene by appropriate means to save an insane prisoner from execution. The judiciary has this power both under the statutes and under the common law.” Commonwealth ex rel. Smith v. Ashe, 364 Pa. 93, 116—119, 71 A. 2d 107, 118-120. See Phyle v. Duffy, 334 U. S. 431; and Solesbee v. Balkcom, 339 U. S. 9. Petitioner’s final point is that the United States District Court committed error in refusing to hold a plenary hearing for determination of his sanity. This is refuted by Brown v. Allen, 344 U. S. 443, at 460-465, decided today. In denying the first petition, the District Court received evidence from judges of the State trial panel, defense and prosecution counsel and others as to whether a fair hearing on petitioner’s sanity had been accorded him by the State. In denying the second petition for habeas corpus, the District Court held that not “unless special circumstances prevail, should the lowest federal court reverse the highest state court in cases where the constitutional issues have been disposed on the merits by the highest state court in an opinion specifically setting forth its reasons that there has been no denial of due process of law, and where the record before the state court and the allegations in the petition for the writ before the federal court fail to disclose that the state in its prosecution departed from the constitutional requirements. That is this case.” United States ex rel. Smith v. Baldi, 96 F. Supp. 100, at 103. This view of the proceedings accords with our holding in the Brown case, supra. As the trial and appellate State court records which were before the District Court show a judicial hearing, where on the plea of guilty the question of sanity at the time of the commission of the crime was canvassed, the sentence does not violate due process. Affirmed. On appeal the Supreme Court of Pennsylvania stated that petitioner had been adjudged guilty of murder in the first degree on the former date, September 21, 1948. Commonwealth v. Smith, 362 Pa. 222, at 223, 66 A. 2d 764. In its opinion denying the subsequent petition for a writ of habeas corpus the Pennsylvania court held that “[w]hether this judgment was entered on September 21, 1948, or on February 4, 1949, is unimportant in these proceedings.” Commonwealth ex rel. Smith v. Ashe, 364 Pa. 93, at 112, 71 A. 2d 107, at 116. “When counsel for the relator entered a plea of guilty to the indictment, that plea admitted the prisoner’s sanity because no insane person can be guilty of murder. The testimony relating to Smith’s mental condition, taken after the plea had been entered, was for the purpose of providing the court with data which it could use in determining the appropriate penalty to be imposed upon the defendant.” 364 Pa. 93, at 112, 71 A. 2d 107, at 117. Pennsylvania law provides that counsel may ask for a special trial to test his client’s sanity at arraignment: “The same [lunacy commitment] proceedings may be had, if any person indicted for an offense shall, upon arraignment, be found to be a lunatic, by a jury lawfully impanelled for the purpose, or if, upon the trial of any person so indicted, such person shall appear to the jury charged with such indictment to be a lunatic, the court shall direct such findings to be recorded, and may proceed as aforesaid.” 19 Purdon’s Pa. Stat. Ann. § 1352. Whether such a jury trial at the outset will be granted depends on the discretion of the trial judge. He may defer the inquest and allow the question to be decided by the jury trying the indictment. Webber v. Commonwealth, 119 Pa. 223, 13 A. 427; Commonwealth v. Scovern, 292 Pa. 26, 140 A. 611; Commonwealth v. Cilione, 293 Pa. 208, 142 A. 216; Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Me. Chief Justice Burger delivered the opinion of the Court. These two appeals raise questions as to Pennsylvania and Rhode Island statutes providing state aid to church-related elementary and secondary schools. Both statutes are challenged as violative of the Establishment and Free Exercise Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment. Pennsylvania has adopted a statutory program that provides financial support to nonpublic elementary and secondary schools by way of reimbursement for the cost of teachers’ salaries, textbooks, and instructional materials in specified secular subjects. Rhode Island has adopted a statute under which the State pays directly to teachers in nonpublic elementary schools a supplement of 15% of their annual salary. Under each statute state aid has been given to church-related educational institutions. We hold that both statutes are unconstitutional. I The Rhode Island Statute The Rhode Island Salary Supplement Act was enacted in 1969. It rests on the legislative finding that the quality of education available in nonpublic elementary schools has been jeopardized by the rapidly rising salaries needed to attract competent and dedicated teachers. The Act authorizes state officials to supple-mént the salaries of teachers of secular subjects in nonpublic elementary schools by paying directly to a teacher an amount not in exc'ess of 15% of his current annual salary. As supplemented, however, a nonpublic school teacher’s salary cannot exceed the maximum paid to teachers in the State’s public schools, and the recipient must be certified by the state board of education in substantially the same manner as public school teachers. In order to be eligible for the Rhode Island salary supplement, the recipient must teach in a nonpublic school at which the average per-pupil expenditure on secular education is less than the average in the State’s public schools during a specified period. Appellant State Commissioner of Education also requires eligible schools to submit financial data. If this information indicates a per-pupil expenditure in excess of the statutory limitation, the records of the school in question must be examined in order to assess how much of the expenditure is attributable to secular education and how much to religious activity. The Act also requires that teachers eligible for salary supplements must teach only those subjects that are offered in the State’s public schools. They must use “only teaching materials which are used in the public schools.” Finally, any teacher applying for a salary supplement must first agree in writing “not to teach a course in religion for so long as or during such time a"s he or she receives any salary supplements” under the Act; Appellees are citizens and taxpayers of Rhode Island. They brought this suit to have the Rhode Island Salary Supplement Act declared unconstitutional and its operation enjoined on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment. Appellants are state officials charged with administration of the Act, teachers eligible for salary supplements under the Act, and parents of children in church-related elementary schools whose teachers would receive state salary assistance. A three-judge federal court was convened pursuant to 28 U. S. C. §§ 2281, 2284. It found that Rhode Island’s nonpublic elementary schools accommodated approximately 25% of the State’s pupils. About 95% of these pupils attended schools affiliated with the Roman Catholic church. To date some 250 teachers have applied for benefits under the Act. All of them are employed by Roman Catholic schools. The court held a hearing at which extensive evidence was introduced concerning the nature of the secular instruction offered in the Roman Catholic schools whose teachers would be eligible for salary assistance under the Act. Although the court found that concern for religious values does not necessarily affect the content of secular subjects, it also found that the parochial school system was “an integral part of the religious mission of the Catholic Church.” The District Court concluded that the Act violated the Establishment Clause, holding that it fostered “excessive entanglement” between government and religion. In addition two judges thought that the Act had the impermissible effect of giving “significant aid to a religious enterprise.” 316 F. Supp. 112. We affirm,. The Pennsylvania Statute Pennsylvania has adopted a program that has some but not all of the features of the Rhode Island program. The Pennsylvania Nonpublic Elementary and Secondary Education Act was passed in 1968 in response to a crisis that the Pennsylvania Legislature found existed in the State’s nonpublic schools due to rapidly rising costs. The statute affirmatively reflects the legislative conclusion that the State’s educational goals could appropriately be fulfilled by government support of “those purely secular educational objectives achieved through nonpublic education .....” The statute authorizes appellee state Superintendent of Public Instruction to “purchase” specified “secular educational services” from nonpublic schools. Under the “contracts” authorized by the statute, the State directly reimburses nonpublic schools solely for their actual expenditures for teachers’ salaries, textbooks, and instructional materials. A school seeking reimbursement must-maintain prescribed accounting procedures that identify the “separate” cost of the “secular educational service.” These accounts are subject to state audit. The funds for this program were originally derived from a new tax on horse and harness racing, but the Act is now financed by a portion of the state tax on cigarettes. There are several significant statutory restrictions on state aid. Reimbursement is limited to courses “presented in the curricula of the public schools.” It is further limited “solely” to courses in the following “secular” subjects: mathematics, modern foreign languages, physical science, and physical education. Textbooks and instructional materials included in the program must be approved by the state Superintendent of Public Instruction. Finally, the statute prohibits reimbursement for any course that contains “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.” The Act went into effect on July 1, 1968, and the first reimbursement payments to schools were made on September 2, 1969. It appears that some $5 million has been expended annually under the Act. The State has now entered into contracts with some 1,181 nonpublic elementary and secondary schools with a student population of some 636,215 pupils — more than 20% of the total number of students in the State. More than 96% of these pupils attend church-related schools, and most of these schools are affiliated with the Roman Catholic church. Appellants brought this action in the District Court to challenge the constitutionality of the Pennsylvania statute. The organizational plaintiffs-appellants are associations of persons resident in Pennsylvania declaring belief in the-separation of church and state; individual plaintiffs-appellants are citizens and taxpayers of Pennsylvania. Appellant Lemon, in addition to being a citizen and a taxpayer, is a parent of a child attending public school in Pennsylvania. Lemon also alleges that he purchased, a ticket at a race track and thus had paid the specific tax that supports the expenditures under the Act. Appellees are state officials who have the responsibility for administering the Act. In addition seven church-related schools are defendants-appellees. A three-judge federal court was convened pursuant to 28 U. S. C. §§ 2281, 2284. The District Court held that the individual plaintiffs-appellants had standing to challenge the Act, 310 F. Supp. 42. The organizational plaintiffs-appellants were denied standing under Flast v. Cohen, 392 U. S. 83, 99, 101 (1968). The court granted appellees’ motion to dismiss the complaint for failure to state a claim for relief. 310 F. Supp. 35. It held that the Act violated neither the Establishment nor the Free Exercise Clause, Chief Judge Hastie dissenting. We reverse. II In Everson v. Board of Education, 330 U. S. 1 (1947), this Court-upheld a state statute that reimbursed the parents of parochial school children for bus transportation expenses. There Mr. Justice Black, writing for the majority, suggested that the decision carried to “the verge” of forbidden territory under the Religion Clauses. Id,., at 16. Candor compels acknowledgment, moreover, that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law. The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead they commanded that there should be “no law respecting an establishment of religion.” A law may be one “respecting” the forbidden objective while falling short of its total realization. A law “respecting” the proscribed result, that is, the establishment of religion, is not always easily identifiable as one viola-tive of the Clause. A given law might not establish a state religion but nevertheless be one “respecting” that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment. In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Walz v. Tax Commission, 397 U. S. 664, 668 (1970). Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First; the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U. S. 236, 243 (1968); finally, the statute must not foster “an excessive government entanglement with religion.” Walz, supra, at 674. Inquiry into the legislative purposes of the Pennsylvania and Rhode Island statutes affords no basis for a conclusion that the legislative intent was to advance religion. On the contrary, the statutes themselves clearly state that they are intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws. There is no reason' to believe the legislatures meant anything else. A State always has a legitimate concern for maintaining minimum standards in all schools it allows to operate. As in Allen, we find nothing here that undermines the stated legislative intent ; it must therefore be accorded appropriate deference. In Allen the Court acknowledged that secular and religious teachings were not necessarily so intertwined that secular textbooks furnished to students by the State were in fact instrumental in the teaching of • religion. 392 U. S., at 248. The legislatures of Rhode Island and Pennsylvania have concluded that secular and religious education are identifiable and separable. In the abstract we have no quarrel with this conclusion. The two legislatures, however, have also recognized that church-related elementary and secondary schools have a significant religious mission and that a substantial portion of their activities is religiously oriented. They have therefore sought to create statutory restrictions designed to guarantee the separation between secular and religious educational functions and to ensure that State financial aid supports only the former. .All these provisions are precautions taken in candid recognition that these programs approached, even if they did not intrude upon, the forbidden areas under the Religion Clauses. We need not decide whether these legislative precautions restrict the principal or primary effect of the programs to the point where they do not offend the Religion Clauses, for we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion. Ill In Walz v. Tax Commission, supra, the Court upheld state tax exemptions for real property owned by religious organizations and used for religious worship. That holding, however, tended to confine rather than enlarge the area of permissible state involvement with religious institutions by calling for close scrutiny of the degree of entanglement involved in the relationship. The obj ective is to prevent, as far as possible, the intrusion of either into the precincts of the other. Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. Zorach v. Clauson, 343 U. S. 306, 312 (1952); Sherbert v. Verner, 374 U. S. 398, 422 (1963) (Harlan, J., dissenting). Fire inspections, building and zoning regulations, and state requirements under compulsory school-attendance laws are examples of necessary and permissible contacts. Indeed, under the statutory exemption before us in Walz, the State had a continuing burden, to ascertain that the exempt property was in fact being used for religious worship. Judicial caveats against entanglement must recognize that the line of separation, far from being a “wall,” is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship. This is not to suggest, however, that we are to engage in a legalistic minuet in which precise rules and forms must govern. A true minuet is a matter of pure form and style, the observance of which is itself the substantive end. Here we examine the form of the relationship for the light that it casts on the substance. In order to determine whether the government entanglement with religion is excessive, we must examine the character' and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority. Mr. Justice Harlan, in a separate opinion in Walz, supra, echoed the classic warning as to “programs, whose very nature is apt to entangle the state in details of administration . . . .” Id., at 695. Here we find that both statutes foster an impermissible degree of entanglement. (a) Rhode Island program The District Court made extensive findings on the grave potential for excessive entanglement that inheres in the religious character and purpose of the Roman Catholic elementary schools of Rhode Island, to date the sole beneficiaries of the Rhode Island Salary Supplement Act. The church schools involved in the program are located close to parish churches. This understandably permits convenient access for religous exercises since instruction in faith and morals is part of the total educational process. The school buildings contain identifying religious symbols such as crosses on the exterior and crucifixes, and religious paintings and statues either in the classrooms or hallways. Although only approximately 30 minutes a day are devoted to direct religious instruction, there are religiously oriented extracurricular activ> ties. Approximately two-thirds of the teachers in these schools are nuns of various religious orders. Their dedicated efforts provide an atmosphere in which religious instruction and religious vocations are natural and proper parts of life in such schools. Indeed, as the District Court found, the role of teaching nuns in enhancing the religious atmosphere has led the parochial school authorities to attempt to maintain a one-to-one ratio between nuns and lay teachers in all schools rather than to permit some to be staffed almost entirely by lay . teachers. On the basis of these findings the District Court con-: eluded that the parochial schools constituted “an integral part of the religious mission of the Catholic Church'.” The various characteristics of the schools make them “a powerful vehicle for transmitting the Catholic faith to. the next generation.” This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools particularly. In short, parochial schools involve substantial religious activity and purpose. The substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid. Although the District Court found that concern for religious values did not inevitably or necessarily intrude into the content of secular subjects, the considerable religious activities of these schools led the legislature to provide for careful governmental controls and surveillance by state authorities in order to ensure that state aid supports only secular education. The dangers and corresponding entanglements are enhanced by the particular form of aid that the Rhode Island Act provides. Our decisions from Everson to Allen have permitted the States to provide church-related schools with secular, neutral, or nonidéological services, facilities, or materials. Bus transportation, school lunches, public health services, and secular textbooks supplied in common to all students were not thought to offend the Establishment Clause. We note that the dissenters in Allen seemed chiefly concerned with the pragmatic difficulties involved in ensuring the truly secular content of the textbooks provided at state expense. In Allen the Court refused to make assumptions, on a meager record, about the religious content of the textbooks that the State would be asked to provide. We cannot, however, refuse here to recognize that teachers have a substantially different ideological character from books. In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook’s content is ascertainable, but a teacher’s handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline-poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation. In our view the record shows these dangers are present, to a substantial degree. The Rhode Island Roman Catholic elementary schools are under the general supervision of the Bishop of Providence and his appointed representative, the Diocesan Superintendent of Schools. In most cases, each individual parish, however, assumes the ultimate financial responsibility for the school, with the parish priest authorizing the allocation of parish funds. With only two exceptions, school principals are nuns appointed either by the Superintendent or the Mother Provincial of the order whose members staff the school. By 1969 lay teachers constituted more than a third of all teachers in the parochial elementary schools, and their number is growing. They are first interviewed by the superintendent’s office and then by the school principal. The contracts are signed by the parish priest, and he retains some discretion in negotiating salary levels. Religious authority necessarily pervades the school system. The schools are governed by the standards set forth in a “Handbook of School-Regulations,” which has the force of synodal law in the diocese. It emphasizes the role and importance of the teacher in parochial schools: “The prime factor for the success or the failure of the school is the spirit and personality, as well as the professional competency, of the teacher . . . The Handbook also states that; “Religious formation is not confined to formal courses; nor is it restricted to a single subject area.” Finally, the Handbook advises teachers to stimulate interest in religious vocations and missionary work. Given the mission of the church school, these instructions are consistent and logical. Several teachers testified, however, that they did not inject religion into their secular classes. And the District Court found that religious values did not necessarily affect the content of the secular instruction; But what has been recounted suggests the potential if not actual hazards of this form of state aid. The teacher is employed by a religious organization, subject to the direction and discipline of religious authorities, and works in a system dedicated to rearing children in a particular faith. These controls are not lessened by the fact that most of the lay teachers are of the Catholic faith. Inevitably some of a teacher’s responsibilities hover on the border between secular and religious orientation. We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral. Doctrines and faith are not inculcated or' advanced by neutrals. With' the best of intentions such a teacher would find it hard to make a total separation between secular teaching and religious doctrine. What would appear to some to be essential to good citizenship might well for others border on or constitute instruction in religion. Further difficulties are inherent in the combination of religious discipline and the possibility of disagreement between teacher and religious authorities over the meaning of the statutory restrictions. We do not assume, however, that ■ parochial school teachers will be unsuccessful in their attempts to segregate their religious beliefs from their secular educational responsibilities. But the potential for impermissible fostering of religion is. present. The Rhode Island Legislature has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion- — indeed the State here has undertaken to do so. To ensure that no trespass occurs, the State has therefore carefully conditioned its aid with pervasive restrictions. An eligible recipient must teach only those courses that are offered in the public schools and use only those texts and materials that are found in the public schools. In addition the teacher must not engage in teaching any course in religion. A comprehensive, discriminating, and continuing state surveillance will' inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church. There is another area of entanglement in the Rhode Island program that gives concern. The statute excludes teachers employed by nonpublic schools whose average per-pupil expenditures on secular education equal or exceed the comparable figures for public schools. In the event that the total expenditures of an otherwise eligible school exceed this norm, the program requires the govern-, ment to examine the school’s records in order to determine how much of the total expenditures is attributable to secular education and how much to religious activity. This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids. It is a relationship pregnant with dangers of excessive government direction of church schools and hence of churches. The Court noted “the hazards of government supporting churches” in Walz v. Tax Commission, supra, at 675, and we cannot ignore here the danger that pervasive modern governmental power will ultimately intrude on religion and thus conflict with the Religion Clauses. (b) Pennsylvania program The Pennsylvania statute also provides state aid -to church-related schools for teachers’ salaries. The complaint describes an educational system that is very similar to the one existing in Rhode Island. According to the allegations, the church-related elementary and secondary schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose. Since this complaint was dismissed for failure to state a claim for relief, we must accept these allegations as true for purposes of our review. As we. noted earlier, the very restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role give rise to entanglements between church and state. The Pennsylvania statute, like that of Rhode Island, fosters this kind of relationship. Reimbursement is not only limited to courses offered in the public schools and materials approved by state officials, but the statute excludes “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.” In addition, schools seeking reimbursement must maintain accounting procedures that require the State to establish the cost of the secular as distinguished from the religious instruction. The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related school. This factor distinguishes both Everson and Allen, for in both those cases the Court was careful to point out that state aid was provided to the student and his parents — not to the church-related school. Board of Education v. Allen, supra, at 243-244; Everson v. Board of Education, supra, at 18. In Walz v. Tax Commission, supra, at 675, the Court warned of the dangers of direct payments to religious organizations: “Obviously a direct money subsidy would be a relationship pregnant with involvement and, as with most governmental grant programs, could encompass, sustained and detailed administrative relationships for enforcement of statutory or administrative standards . . . .” The history of government grants of a continuing cash subsidy indicates that such programs have' almost always been accompanied by varying measures of control and surveillance. The government cash grants before us now provide no basis for predicting that comprehensive measures of surveillance and controls will not follow,. In particular the government’s post-audit.power to inspect arid evaluate a church-related school’s financial records and to determine which expenditures are religious arid which are secular creates an intimate and continuing relationship between church and state. IV A broader base of entanglement of yet a different character is presented by the divisive political potential of these state programs. In a community where such a large number of pupils are served by church-related schools, it can be assumed that state assistance will entail considerable political activity. Partisans of parochial schools, understandably concerned with rising costs and sincerely dedicated to both the religious and secular educational missions of their schools, will inevitably champion this cause and promote political action to achieve their goals. Those who oppose state aid, whether for constitutional, religious, or fiscal reasons, will inevitably respond and employ all of the usual political campaign techniques to prevail. Candidates will be forced to declare and voters to choose. It would be unrealistic to ignore the fact that many people confronted with issues of this kind will find their votes aligned with their faith. Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of. tlie principal evils against which- the First Amendment was intended to protect. Freund, Comment, Public Aid to Parochial Schools, 82 Harv. L. Rev. 1680, 1692 (1969). The potential divisiveness of such conflict is a threat tó the normal political process. Walz v. Tax Commission, supra, at 695 (separate opinion of Harlan,- J.). See also Board of Education v. Allen, 392 U. S., at 249 (Harlan, J., concurring); Abington School District v. Schempp, 374 U. S. 203, 307 (1963) (Goldberg, J., concurring). To have States or Communities divide on-the issues presented • by state aid to parochial schools would' tend, to eonfuse.- and obscure other issues of great urgency. We have an expanding array of vexing issues, local and national, domestic and international, to debate and divide on. It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in opr elections that they could divert attention from the myriad issues and problems that confront every level of government. The highways of church and state relationships are not likely to be one-way streets, and the Constitution’s authors sought to protect religious worship from the pervasive power of government. The history of many countries attests to the hazards of religion’s intruding into the political arena or of political power intruding into the legitimate and free exercise of religious belief. Of course, as the Court noted in Walz, “[a]dherents of particular faiths and individual churches frequently take strong positions on public issues.” Walz v. Tax Commission, supra, at 670. We could not expect otherwise, for religious values pervade the fabric of our national life. But in Walz we dealt with a status under state tax laws for the benefit of all religious groups. Here we are confronted with successive and very likely permanent annual appropriations that benefit relatively few religious groups. Political fragmentation and divisiveness on religious lines are thus likely to be intensified. The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow. The Rhode Island District Court. found that the parochial school system’s “monumental and deepening financial crisis” would “inescapably” require larger annual appropriations subsidizing greater percentages of the salaries of lay teachers. Although no facts have been developed in this respect in the Pennsylvania case, it appears that such pressures for expanding aid have already required the state legislature to include a portion of the state revenues from cigarette taxes in the program. Y In Walz it was argued that a tax exemption for places of religious worship would prove to be the first step in an inevitable progression leading to the establishment of state churches and state religion. That claim could not stand up against more than 200 years of virtually universal practice imbedded in our colonial experience and continuing into the present. The progression argument, however, is more persuasive here. We have no long history of state aid to church-related educational institutions comparable to 200 years of tax exemption for churches. Indeed, the state programs before us today represent something of an innovation. We have already noted that modern governmental programs have self-perpetuating and self-expanding propensities. These internal pressures are only enhanced when the schemes involve institutions whose legitimate needs are growing and whose interests have substantial political support. Nor can we fail to see that in constitutional adjudication some steps, which when taken were thought to approach “the verge,” have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a “downhill thrust” easily set in motion but difficult to retard or stop. Development by momentum . is not invariably bad; indeed, it is the way the common law has grown, but.it is a force to be recognized and reckoned with. The dangers are increased by the difficulty of perceiving in advance exactly where the “verge” of the precipice lies. As well as constituting an independent evil against which the Religion Clauses were intended to protect, involvement or entanglement between government and religion serves as a warning signal. Finally, nothing we have said can be construed to disparage the role of church-related elementary and secondary schools in our national life. Their contribution has been and is enormous. Nor- do we ignore their economic plight in a period of rising costs and expanding need. Taxpayers generally have been spared vast sums by the maintenance of these educational institutions by religious organizations, largely by the gifts of faithful adherents. The merit and benefits of these schools, however, are not the issue before us in these cases. The sole question is .whether state aid to these schools can be squared with the dictates of the Religion Clauses. Under our system the choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn. The judgment of the Rhode Island District Court in No. 569 and No. 570 is affirmed. The judgment of the Pennsylvania District Court in No. 89 is reversed, and the case is remanded for further proceedings consistent with this opinion. Mr. Justice Marshall took no part in the consideration or decision of No. 89. R. I. Gen. Laws Ann. § 16-51-1 et seq. (Supp. 1970). The District Court found only one instance in which this breakdown between religious and secular expenses was necessary. The school in question was not affiliated with the Catholic church. The court found it unlikely that such determinations would be necessary with respect to Catholic schools because their heavy reliance on nuns kept their wage costs substantially below those of the public schools. Pa. Stat. Ann., Tit. 24, §§ 5601-5609 (Supp. 1971). Latin, Hebrew, and classical Greek are excluded. ■ Plaintiffs-appellants also claimed that the Act violated the Equal Protection Clause of the Fourteenth Amendment by providing state assistance to private institutions that discriminated on racial and religious grounds in their admissions and hiring policies. The court unanimously held that no plaintiff had standing to raise this claim because , the complaint did not allege that the child of any plaintiff had been denied admission to any nonpublic school on racial or religious grounds. Our decision makes it unnecessary for us to. reach this issue. See, e. g., J. Fiehter, Parochial School: A Sociological Study 77-108 (1958); Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, pt. II, The Nonestablishment Principle, 81 Harv. L. Rev. 513, 574 (1968). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

C

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to review the judgment of the Court of Appeals suspending petitioner from practice in all courts of the Eighth Circuit for six months. HH In March 1983, petitioner Robert Snyder was appointed by the Federal District Court for the District of North Dakota to represent a defendant under the Criminal Justice Act. After petitioner completed the assignment, he submitted a claim for $1,898.55 for services and expenses. The claim was reduced by the District Court to $1,796.05. Under the Criminal Justice Act, the Chief Judge of the Court of Appeals was required to review and approve expenditures for compensation in excess of $1,000. 18 U. S. C. § 3006A(d)(3). Chief Judge Lay found the claim insufficiently documented, and he returned it with a request for additional information. Because of technical problems with his computer software, petitioner could not readily provide the information in the form requested by the Chief Judge. He did, however, file a supplemental application. The secretary of the Chief Judge of the Circuit again returned the application, stating that the proffered documentation was unacceptable. Petitioner then discussed the matter with Helen Monteith, the District Court Judge’s secretary, who suggested he write a letter expressing his. view. Petitioner then wrote the letter that led to this case. The letter, addressed to Ms. Monteith, read in part: “In the first place, I am appalled by the amount of money which the federal court pays for indigent criminal defense work. The reason that so few attorneys in Bismarck accept this work is for that exact reason. We have, up to this point, still accepted the indigent appointments, because of a duty to our profession, and the fact that nobody else will do it. “Now, however, not only are we paid an amount of money which does not even cover our overhead, but we have to go through extreme gymnastics even to receive the puny amounts which the federal courts authorize for this work.. We have sent you everything we have concerning our representation, and I am not sending you anything else. You can take it or leave it. “Further, I am extremely disgusted by the treatment of us by the Eighth Circuit in this case, and you are instructed to remove my name from the list of attorneys who will accept criminal indigent defense work. I have simply had it. “Thank you for your time and attention.” App. 14-15. The District Court Judge viewed this letter as one seeking changes in the process for providing fees, and discussed these concerns with petitioner. The District Court Judge then forwarded the letter to the Chief Judge of the Circuit. The Chief Judge in turn wrote to the District Judge, stating that he considered petitioner’s letter “totally disrespectful to the federal courts and to the judicial system. It demonstrates a total lack of respect for the legal process and the courts.” Id., at 16. The Chief Judge expressed concern both about petitioner’s failure-to “follow the guidelines and [refusal] to cooperate with the court,” and questioned whether, “in view of the letter” petitioner was “worthy of practicing law in the federal courts on any matter.” He stated his intention to issue an order to show cause why petitioner should not be suspended from practicing in any federal court in the Circuit for a period of one year. Id., at 17-18. Subsequently, the Chief Judge wrote to the District Court again, stating that if petitioner apologized the matter would be dropped. At this time, the Chief Judge approved a reduced fee for petitioner’s work of $1,000 plus expenses of $23.25. After talking with petitioner, the District Court Judge responded to the Chief Judge as follows: “He [petitioner] sees his letter as an expression of an honest opinion, and an exercise of his right of freedom of speech. I, of course, see it as a youthful and exuberant expression of annoyance which has now risen to the level of a cause. . . . “He has decided not to apologize, although he assured me he did not intend the letter as you interpreted it.” Id., at 20. The Chief Judge then issued an order for petitioner to show cause why he should not be suspended for his “refusal to carry out his obligations as a practicing lawyer and officer of [the] court” because of his refusal to accept assignments under the Criminal Justice Act. Id., at 22. Nowhere in the order was there any reference to any disrespect in petitioner’s letter of October 6, 1983. Petitioner requested a hearing on the show cause order. In his response to the order, petitioner focused exclusively on whether he was required to represent indigents under the Criminal Justice Act. He contended that the Act did not compel lawyers to represent indigents, and he noted that many of the lawyers in his District had declined to serve. He also informed the court that prior to his withdrawal from the Criminal Justice Act panel, he and his two partners had taken 15 percent of all the Criminal Justice Act cases in their district. At the hearing, the Court of Appeals focused on whether petitioner’s letter of October 6, 1983, was disrespectful, an issue not mentioned in the show cause order. At one point, Judge Arnold asked: “I am asking you, sir, if you are prepared to apologize to the court for the tone of your letter?” Id:, at 40. Petitioner answered: “That is not the basis that I am being brought forth before the court today.” Ibid. When the issue again arose, petitioner protested: “But, it seems to me we’re getting far afield here. The question is, can I be suspended from this court for my request to be removed from the panel of attorneys.” Id., at 42. Petitioner was again offered an opportunity to apologize for his letter, but he declined. At the conclusion of the hearing, the Chief Judge stated: “I want to make it clear to Mr. Snyder what it is the court is allowing you ten days lapse here, a period for you to consider. One is, that, assuming there is a general requirement for all competent lawyers to do pro bono work that you stand willing and ready to perform such work and will comply with the guidelines of the statute. And secondly, to reconsider your position as Judge Arnold has requested, concerning the tone of your letter of October 6.” Id., at 50. Following the hearing, petitioner wrote a letter to the court, agreeing to “enthusiastically obey [the] mandates” of any new plan for the implementation of the Criminal Justice Act in North Dakota, and to “make every good faith effort possible” to comply with the court’s guidelines regarding compensation under the Act. Petitioner’s letter, however, made no mention of the October 6, ¿983, letter. Id., at 51-52. The Chief Judge then wrote to Snyder, stating among other things: “The court expressed its opinion at the time of the oral hearing that interrelated with our concern and the issuance of the order to show cause was the disrespect that you displayed to the court by way of your letter addressed to Helen Montieth [sic], Judge Van Sickle’s secretary, of October 6, 1983. The court expressly asked if you would be willing to apologize for the tone of the letter and the disrespect displayed. You serve as an officer of the court and, as such, the Canons of Ethics require every lawyer to maintain a respect for the court as an institution. “Before circulating your letter of February 23,1 would appreciate your response to Judge Arnold’s specific request, and the court's request, for you to apologize for the letter that you wrote. “Please let me hear from you by return mail. I am confident that if such a letter is forthcoming that the court will dissolve the order.” Id., at 52-53. (Emphasis added.) Petitioner responded to the Chief Judge: “I cannot, and will never, in justice to my conscience, apologize for what I consider to be telling the truth, albeit in harsh terms. . . . “It is unfortunate that the respective positions in the proceeding have so hardened. However, I consider this to be a matter of principle, and if one stands on a principle, one must be willing to accept the consequences.” Id., at 54. After receipt of this letter, petitioner was suspended from the practice of law in the federal courts in the Eighth Circuit for six months. 734 F. 2d 334 (1984). The opinion stated that petitioner “contumaciously refused to retract his previous remarks or apologize to the court.” Id., at 336. It continued: “[Petitioner’s] refusal to show continuing respect for the court and his refusal to demonstrate a sincere retraction of his admittedly ‘harsh’ statements are sufficient to demonstrate to this court that he is not presently fit to practice law in the federal courts. All courts depend on the highest level of integrity and respect not only from the judiciary but from the lawyers who serve in the court as well. Without public display of respect for the judicial branch of government as an institution by lawyers, the law cannot survive. . . . Without hesitation we find Snyder’s disrespectful statements as to this court’s administration of CJA contumacious conduct. We deem this unfortunate. “We find that Robert Snyder shall be suspended from the practice of law in the federal courts of the Eighth Circuit for a period of six months; thereafter, Snyder should make application to both this court and the federal district court of North Dakota to be readmitted.” Id., at 337. (Emphasis added.) The opinion specifically stated that petitioner’s offer to serve in Criminal Justice Act cases in the future if the panel was equitably structured had “considerable merit.” Id., at 339. Petitioner moved for rehearing en banc. In support of his motion, he presented an affidavit from the District Judge’s secretary — the addressee of the October 6 letter — stating that she had encouraged him to send the letter. He also submitted an affidavit from the District Judge, which read in part: “I did not view the letter as one of disrespect for the Court, but rather one of a somewhat frustrated lawyer hoping that his comments might be viewed as a basis for some changes in the process. . . Mr. Snyder has appeared before me on a number of occasions and has always competently represented his client, and has shown the highest respect to the court system and to me.” App. 83-84. (Emphasis added.) The petition for rehearing en banc was denied. An opinion for the en banc court stated: “The gravamen of the situation is that Snyder in his letter [of October 6, 1983] became harsh and disrespectful to the Court. It is one thing for a lawyer to complain factually to the Court, it is another for counsel to be disrespectful in doing so. “. . . Snyder states that his letter is not disrespectful. We disagree. In our view, the letter speaks for itself.” 734 F. 2d, at 343. (Emphasis added.) The en banc court opinion stayed the order of suspension for 10 days, but provided that the stay would be lifted if petitioner failed to apologize. He did not apologize, and the order of suspension took effect. We granted certiorari, 469 U. S. 1156 (1985). We reverse. I — I I — I Petitioner challenges his suspension from practice on the grounds (a) that his October 6, 1983, letter to the District Judge’s secretary was protected by the First Amendment, (b) that he was denied due process with respect to the notice of the charge on which he was suspended, and (c) that his challenged letter was not disrespectful or contemptuous. We avoid constitutional issues when resolution of such issues is not necessary for disposition of a case. Accordingly, we consider first whether petitioner’s conduct and expressions warranted his suspension from practice; if they did not, there is no occasion to reach petitioner’s constitutional claims. Courts have long recognized an inherent authority to suspend or disbar lawyers. Ex parte Garland, 4 Wall. 333, 378-379 (1867); Ex parte Burr, 9 Wheat. 529, 531 (1824). This inherent power derives from the lawyer’s role as an officer of the court which granted admission. Theard v. United States, 354 U. S. 278, 281 (1957). The standard for disciplining attorneys practicing before the courts of appeals is set forth in Federal Rule of Appellate Procedure 46: “(b) Suspension or Disbarment. When it is shown to the court that any member of its bar has been suspended or disbarred from practice in any other court of record, or has been guilty of conduct unbecoming a member of the bar of the court, he will be subject to suspension or disbarment by the court. The member shall be afforded an opportunity to show good cause, within such time as the court shall prescribe, why he should not be suspended or disbarred. Upon his response to the rule to show cause, and after hearing, if requested, or upon expiration of the time prescribed for a response if no response is made, the court shall enter an appropriate order.” (Emphasis added.) The phrase “conduct unbecoming a member of the bar” must be read in light of the “complex code of behavior” to which attorneys are subject. In re Bithoney, 486 F. 2d 319, 324 (CA1 1973). Essentially, this reflects the burdens inherent in the attorney’s dual obligations to clients and to the system of justice. Justice Cardozo once observed: “‘Membership in the bar is a privilege burdened with conditions.’ [An attorney is] received into that ancient fellowship for something more than private gain. He [becomes] an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.” People ex rel. Karlin v. Culkin, 248 N. Y. 465, 470-471, 162 N. E. 487, 489 (1928) (citation omitted). As an officer of the court, a member of the bar enjoys singular powers that others do not possess; by virtue of admission, members of the bar share a kind of monopoly granted only to lawyers. Admission creates a license not only to advise and counsel clients but also to appear in court and try cases; as an officer of the court, a lawyer can cause persons to drop their private affairs and be called as witnesses in court, and for depositions and other pretrial processes that, while subject to the ultimate control of the court, may be conducted outside courtrooms. The license granted by the court requires members of the bar to conduct themselves in a manner compatible with the role of courts in the administration of justice. Read in light of the traditional duties imposed on an attorney, it is clear that “conduct unbecoming a member of the bar” is conduct contrary to professional standards that shows an unfitness to discharge continuing obligations to clients or the courts, or conduct inimical to the administration of justice. More specific guidance is provided by case law, applicable court rules, and “the lore of the profession,” as embodied in codes of professional conduct. B Apparently relying on an attorney’s obligation to avoid conduct that is “prejudicial to the administration of justice,” the Court of Appeals held that the letter of October 6, 1983, and an unspecified “refusal to show continuing respect for the court” demonstrated that petitioner was “not presently fit to practice law in the federal courts.” 734 F. 2d, at 337. Its holding was predicated on a specific finding that petitioner’s “disrespectful statements [in his letter of October 6, 1983] as to this court’s administration of the CJA [constituted] contumacious conduct.” Ibid. We must examine the record in light of Rule 46 to determine whether the Court of Appeals’ action is supported by the evidence. In the letter, petitioner declined to submit further documentation in support of his fee request, refused to accept further assignments under the Criminal Justice Act, and criticized the administration of the Act. Petitioner’s refusal to submit further documentation in support of his fee request could afford a basis for declining to award a fee; however, the submission of adequate documentation was only a prerequisite to the collection of his fee, not an affirmative obligation required by his duties to a client or the court. Nor, as the Court of Appeals ultimately concluded, was petitioner legally obligated under the terms of the local plan to accept Criminal Justice Act cases. We do not consider a lawyer’s criticism of the administration of the Act or criticism of inequities in assignments under the Act as cause for discipline or suspension. The letter was addressed to a court employee charged with administrative responsibilities, and concerned a practical matter in the administration of the Act. The Court of Appeals acknowledged that petitioner brought to light concerns about the administration of the plan that had “merit,” 734 F. 2d, at 339, and the court instituted a study of .the administration of the Criminal Justice Act as a result of petitioner’s complaint. Officers of the court may appropriately express criticism on such matters. The record indicates the Court of Appeals was concerned about the tone of the letter; petitioner concedes that the tone of his letter was “harsh,” and, indeed it can be read as ill-mannered. All persons involved in the judicial process— judges, litigants, witnesses, and court officers — owe a duty of courtesy to all other participants. The necessity for civility in the inherently contentious setting of the adversary process suggests that members of the bar cast criticisms of the system in a professional and civil tone. However, even assuming that the letter exhibited an unlawyerlike rudeness, a single incident of rudeness or lack of professional courtesy— in this context — does not support a finding of contemptuous or contumacious conduct, or a finding that a lawyer is “not presently fit to practice law in the federal courts.” Nor does it rise to the level of “conduct unbecoming a member of the bar” warranting suspension from practice. Accordingly, the judgment of the Court of Appeals is Reversed. Justice Blackmun took no part in the decision of this case. The statutory limit has since been raised to $2,000. 18 U. S. C. § 3006A(d)(2) (1982 ed., Supp. III). A resolution presented by the Burleigh County Bar Association to the Court of Appeals on petitioner’s behalf stated that of the 276 practitioners eligible to serve on the Criminal Justice Act panel in the Southwestern Division of the District of North Dakota, only 87 were on the panel. App. 85. 734 F. 2d, at 341. Circuit Judges Bright and McMillian voted to grant the petition for rehearing en banc. The panel opinion made explicit that Snyder was suspended from the District Court as well as the Court of Appeals by stating: “[Tjhereafter Snyder should make application to both this court and the federal district court of North Dakota to be readmitted.” 734 F. 2d, at 337. Federal Rule of Appellate Procedure 46 does not appear to give authority to the Court of Appeals to suspend attorneys from practicing in the District Court. As the panel opinion itself indicates, the admission of attorneys to practice before the District Court is placed, as an initial matter, before the District Court itself. The applicable Rule of the District Court indicates that a suspension from practice before the Court of Appeals creates only a rebuttable presumption that suspension from the District Court is in order. The Rule appears to entitle the attorney to a show cause hearing before the District Court. Rule 2(e)(2), United States District Court for the District of North Dakota, reprinted in Federal Local Rules for Civil and Admiralty Proceedings (1984). A District Court decision would be subject to review by the Court of Appeals. The Court of Appeals relied on Federal Rule of Appellate Procedure 46(c) for its action. While the language of Rule 46(c) is not without some ambiguity, the accompanying note of the Advisory Committee on Appellate Rules, 28 U. S. C. App., p. 496, states that this provision “is to make explicit the power of a court of appeals to impose sanctions less serious than suspension or disbarment for the breach of rules.” The appropriate provision under which to consider the sanction of suspension would have been Federal Rule of Appellate Procedure 46(b), which by its terms deals with “suspension or disbarment.” The Court of Appeals stated that the standard of professional conduct expected of an attorney is defined by the ethical code adopted by the licensing authority of an attorney’s home state, 734 F. 2d, at 336, n. 4, and cited the North Dakota Code of Professional Responsibility as the controlling expression of the conduct expected of petitioner. The state code of professional responsibility does not by its own terms apply to sanctions in the federal courts. Federal courts admit and suspend attorneys as an exercise, of their inherent power; the standards imposed are a matter of federal law. Hertz v. United States, 18 F. 2d 52, 54-55 (CA8 1927). The Court of Appeals was entitled, however, to charge petitioner with the knowledge of and the duty to conform to the state code of professional responsibility. The uniform first step for admission to any federal court is admission to a state court. The federal court is entitled to rely on the attorney’s knowledge of the state code of professional conduct applicable in that state court; the provision that suspension in any other court of record creates a basis for a show cause hearing indicates that Rule 46 anticipates continued compliance with the state code of conduct. 734 F. 2d, at 336-337. This duty is almost universally recognized in American jurisdictions. See, e. g., Disciplinary Rule 1-102(A)(5), North Dakota Code of Professional Responsibility; Rule 8.4(d), American Bar Association, Model Rules of Professional Conduct (1983); Disciplinary Rule 1-102(A)(5), American Bar Association, Model Code of Professional Responsibility (1980). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

F

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to consider whether an accused may invoke the privilege against adverse spousal testimony so as to exclude the voluntary testimony of his wife. 440 U. S. 934 (1979). This calls for a re-examination of Hawkins v. United States, 358 U. S. 74 (1958). I On March 10, 1976, petitioner Otis Trammel was indicted with two others, Edwin Lee Roberts and Joseph Freeman, for importing heroin into the United States from Thailand and the Philippine Islands and for conspiracy to import heroin in violation of 21 U. S. C. §§ 952 (a), 962 (a), and 963. The indictment also named six unindieted eo-conspirators, including petitioner’s wife Elizabeth Ann Trammel. According to the indictment, petitioner and his wife flew from the Philippines to California in August 1975, carrying with them a quantity of heroin. Freeman and Roberts assisted them in its distribution. Elizabeth Trammel then traveled to Thailand where she purchased another supply of the drug. On November 3, 1975, with four ounces of heroin on her person, she boarded a plane for the United States. During a routine customs search in Hawaii, she was searched, the heroin was discovered, and she was arrested. After discussions with Drug Enforcement Administration agents, she agreed to cooperate with the Government. Prior to trial on this indictment, petitioner moved to sever his case from that of Roberts and Freeman. He advised the court that the Government intended to call his wife as an adverse witness and asserted his claim to a privilege to prevent her from testifying against him. At a hearing on the motion, Mrs. Trammel was called as a Government witness under a grant of use immunity. She testified that she and petitioner were married in May 1975 and that they remained married. She explained that her cooperation with the Government was based on assurances that she would be given lenient treatment. She then described, in considerable detail, her role and that of her husband in the heroin distribution conspiracy. After hearing this testimony, the District Court ruled that Mrs. Trammel could testify in support of the Government’s case to any act she observed during the marriage and to any communication “-made in the presence of a third person”; however, confidential communications between petitioner and his wife were held to, be privileged and inadmissible. The motion to sever was denied. At trial, Elizabeth Trammel testified within the limits of the court’s pretrial ruling; her testimony, as the Government concedes, constituted virtually its entire case against petitioner. He was found guilty on both the substantive and conspiracy charges and sentenced to an indeterminate term of years pursuant to the Federal Youth Corrections Act, 18 U. S. C. § 5010 (b). In the Court of Appeals petitioner’s only claim of error was that the admission of the adverse testimony of his wife, over his objection, contravened this Court’s teaching in Hawkins v. United States, supra, and therefore constituted reversible error. The Court of Appeals rejected this contention. It concluded that Hawkins did not prohibit “the voluntary testimony of a spouse who appears as an unindicted co-conspirator under grant of immunity from the Government in return for her-testimony.” 583 F. 2d 1166, 1168 (CA10 1978). II The privilege claimed by petitioner has ancient roots. Writing in 1628, Lord Coke observed that “it hath beene resolved by the Justices that a wife cannot be produced either against or for her husband.” 1 E. Coke, A Commentarie upon Little-ton 6b (1628). See, generally, 8 J. Wigmore, Evidence § 2227 (McNaughton rev. 1961). This spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. From those two now long-abandoned doctrines, it followed that what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife. Despite its medieval origins, this rule of spousal disqualification remained intact in most common-law jurisdictions well into the 19th century. See id., § 2333. It was applied by this Court in Stein v. Bowman, 13 Pet. 209, 220-223 (1839), in Graves v. United States, 150 U. S. 118 (1893), and again in Jin Fuey Moy v. United States, 254 U. S. 189, 195 (1920), where it was deemed so well established a proposition as to “hardly requir[e] mention.” Indeed, it was not until 1933, in Funk v. United States, 290 U. S. 371, that this Court abolished the testimonial disqualification in the federal courts, so as to permit the spouse of a defendant to testify in the defendant’s behalf. Funk, however, left undisturbed the rule that either spouse could prevent the other from giving adverse testimony. Id., at 373. The rule thus evolved into one of privilege rather than one of absolute disqualification. See J. Maguire, Evidence, Common Sense and Common Law 78-92 (1947). The modern justification for this privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship. Notwithstanding this benign purpose, the rule was sharply criticized. Professor Wigmore termed it “the merest anachronism in legal theory and an indefensible obstruction to truth in practice.” 8 Wigmore § 2228, at 221. The Committee on Improvements in the Law of Evidence of the American Bar Association called for its abolition. 63 American Bar Association Reports 594-595 (1938). In its place, Wigmore and others suggested a privilege protecting only private marital communications, modeled on the privilege between priest and penitent, attorney and client, and physician and patient. See 8 Wigmore § 2332 et seq. These criticisms influenced the American Law Institute, which, in its 1942 Model Code of Evidence, advocated a privilege for marital confidences, but expressly rejected a rule vesting in the defendant the right to exclude all adverse testimony of his spouse. See American Law Institute, Model Code of Evidence, Rule 215 (1942). In 1953 the Uniform Rules of Evidence, drafted by the National Conference of Commissioners on Uniform State Laws, followed a similar course; it limited the privilege to confidential communications and “abolishe[d] the rule, still existing in some states, and largely a sentimental relic, of not requiring one spouse to testify against the other in a criminal action.” See Rule 23 (2) and comments. Several state legislatures enacted similarly patterned provisions into law. In Hawkins v. United States, 358 U. S. 74 (1958), this Court considered the continued vitality of the privilege against adverse spousal testimony in the federal courts. There the District Court had permitted petitioner’s wife, over his objection, to testify against him. With one questioning concurring opinion, the Court held the wife’s testimony inadmissible ; it took note of the critical comments that the common-law rule had engendered, id., at 76, and n. 4, but chose not to abandon it. Also rejected was the Government’s suggestion that the Court modify the privilege by vesting it in the witness-spouse, with freedom to testify or not independent of the defendant’s control. The Court viewed this proposed modification as antithetical to the widespread belief, evidenced in the rules then in effect in a majority of the States and in England, “that the law should not force or encourage testimony which might alienate husband and wife, or further inflame existing domestic differences.” Id., at 79. Hawkins, then, left the federal privilege for adverse spousal testimony where it found it, continuing “a rule which bars the testimony of one spouse against the other unless both consent.” Id., at 78. Accord, Wyatt v. United States, 362 U. S. 525, 528 (1960). However, in so doing, the Court made clear that its decision was not meant to “foreclose whatever changes in the rule may eventually be dictated by ‘reason and experience.’ ” 358 U. S., at 79. III A The Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal criminal trials “governed by the principles of the common law as they may be interpreted ... in the light of reason and experience.” Fed. Rule Evid. 501. Cf. Wolfle v. United States, 291 U. S. 7, 12 (1934). The general mandate of Rule 501 was substituted by the Congress for a set of privilege rules drafted by the Judicial Conference Advisory Committee on Rules of Evidence and approved by the Judicial Conference of the United States and by this Court. That proposal defined nine specific privileges, including a husband-wife privilege which would have codified the Hawkins rule and eliminated the privilege for confidential marital communications. See proposed Fed. Rule Evid. 505. In rejecting the proposed Rules and enacting Rule 501, Congress manifested an affirmative intention not to freeze the law of privilege. Its purpose rather was to “provide the courts with the flexibility to develop rules of privilege on a case-by-case basis,” 120 Cong. Rec. 40891 (1974) (statement of Rep. Hungate), and to leave the door open to change. See also S. Rep. No. 93-1277, p. 11 (1974); H. R. Rep. No. 93-650, p. 8 (1973). Although Rule 501 confirms the authority of the federal courts to reconsider the continued validity of the Hawkins rule, the long history of the privilege suggests that it ought not to be casually cast aside. That the privilege is one affecting marriage, home, and family relationships— already subject to much erosion in our day — also counsels caution. At the same time, we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggests the need for change. This was recognized in Funk where the Court “decline [d] to enforce . . . ancient rule[s] of the common law under conditions as they now exist.” 290 U. S., at 382. For, as Mr. Justice Black admonished in another setting, “[w]hen precedent and precedent alone is all the argument that can be made to support a court-fashioned rule, it is time for the rule’s creator to destroy it.” Francis v. Southern Pacific Co., 333 U. S. 445, 471 (1948) (dissenting opinion). B Since 1958, when Hawkins was decided, support for the privilege against adverse spousal testimony has been eroded further. Thirty-one jurisdictions, including Alaska and Hawaii, then allowed an accused a privilege to prevent adverse spousal testimony. 358 U. S., at 81, n. 3 (Stewart, J., concurring). The number has now declined to 24. In 1974, the National Conference on Uniform State Laws revised its Uniform Rules of Evidence, but again rejected the Hawkins rule in favor of a limited privilege for confidential communications. See Uniform Rules of Evidence, Rule 504. That proposed rule has been enacted in Arkansas, North Dakota, and Oklahoma — each of which in 1958 permitted an accused to exclude adverse spousal testimony. The trend in state law toward divesting the accused of the privilege to bar adverse spousal testimony has special relevance because the laws of marriage and domestic relations are concerns traditionally reserved to the states. See Sosna v. Iowa, 419 U. S. 393, 404 (1975). Scholarly criticism of the Hawkins rule has also continued unabated. C Testimonial exclusionary rules and privileges contravene the fundamental principle that “ ‘the public . . . has a right to every man’s evidence.’ ” United States v. Bryan, 339 U. S. 323, 331 (1950). As such, they must be strictly construed and accepted “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Elkins v. United States, 364 U. S. 206, 234 (1960) (Frankfurter, J., dissenting). Accord, United States v. Nixon, 418 U. S. 683, 709-710 (1974). Here we must decide whether the privilege against adverse spousal testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice. It is essential to remember that the Hawkins privilege is not needed to protect information privately disclosed between husband and wife in the confidence of the marital relationship— once described by this Court as “the best solace of human existence.” Stein v. Bowman, 13 Pet., at 223. Those confidences are privileged under the independent rule protecting confidential marital communications. Blau v. United States, 340 U. S. 332 (1951); see n. 5, supra. The Hawkins privilege is invoked, not to exclude private marital communications, but rather to exclude evidence of criminal acts and of communications made in the presence of third persons. No other testimonial privilege sweeps so broadly. The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications. These privileges are rooted in the imperative need for confidence and trust. The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return. The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation if the professional mission is to be carried out. Similarly, the physician must know all that a patient can articulate in order to identify and to treat disease; barriers to full disclosure would impair diagnosis and treatment. The Hawkins rule stands in marked contrast to these three privileges. Its protection is not limited to confidential communications; rather it permits an accused to exclude all adverse spousal testimony. As Jeremy Bentham observed more than a century and a half ago, such a privilege goes far beyond making “every man’s house his castle,” and permits a person to convert his house into “a den of thieves.” 5 Rationale of Judicial Evidence 340 (1827). It “secures, to every man, one safe and unquestionable and ever ready accomplice for every imaginable crime.” Id., at 338. The ancient foundations for so sweeping a privilege have long since disappeared. Nowhere in the common-law world— indeed in any modern society — is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being. Chip by chip, over the years those archaic notions have been cast aside so that “[n]o longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.” Stanton v. Stanton, 421 U. S. 7, 14-15 (1975). The contemporary justification for affording an accused such a privilege is also unpersuasive. When one spouse is willing to testify against the other in a criminal proceeding— whatever the motivation — their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace. Indeed, there is reason to believe that vesting the privilege in the accused could actually undermine the marital relationship. Eor example, in a case such as this, the Government is unlikely to offer a wife immunity and lenient treatment if it knows that her husband can prevent her from giving adverse testimony. If the Government is dissuaded from making such an offer, the privilege can have the untoward effect of permitting one spouse to escape justice at the expense of the other. It hardly seems conducive to the preservation of the marital relation to place a wife in jeopardy solely by virtue of her husband’s control over her testimony. IV Our consideration of the foundations for the privilege and its history satisfy us that "reason and experience” no longer justify so sweeping a rule as that found acceptable by the Court in Hawkins. Accordingly, we conclude that the existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. This modification — vesting the privilege in the witness-spouse — furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs. Here, petitioner’s spouse chose to testify against him. That she did so after a grant of immunity and assurances of lenient treatment does not render her testimony involuntary. Cf. Bordenkircher v. Hayes, 434 U. S. 357 (1978). Accordingly, the District Court and the Court of Appeals were correct in rejecting petitioner’s claim of privilege, and the judgment of the Court of Appeals is Affirmed. In response to the question whether divorce was contemplated, Mrs. Trammel testified that her husband had said that “I would go my way and he would go his.” App. 27. The Government represents to the Court that Elizabeth Trammel has not been prosecuted for her role in the conspiracy. Roberts and Freeman were also convicted. Roberts was sentenced to two years’ imprisonment. Freeman received an indeterminate sentence under the Youth Corrections Act. See Brosman, Edward Livingston and Spousal Testimony in Louisiana, 11 Tulane L. Rev. 243 (1937); Hutchins & Slesinger, Some Observations on the Law of Evidence: Family Relations, 13 Minn. L. Rev. 675 (1929); Note, 24 Calif. L. Rev. 472 (1936); Note, 35 Mich. L. Rev. 329 (1936); Note, 10 So. Cal. L. Rev. 94 (1936); Note, 20 Minn. L. Rev. 693 (1936). This Court recognized just such a confidential marital communications privilege in Wolfle v. United States, 291 U. S. 7 (1934), and in Blau v. United States, 340 U. S. 332 (1951). In neither case, however, did the Court adopt the Wigmore view that the communications privilege be substituted in place of the privilege against adverse spousal testimony. The privilege as to confidential marital communications is not at issue in the instant case; accordingly, our holding today does not disturb Wolfie and Blau. See Note, Competency of One Spouse to Testify Against the Other in Criminal Cases Where the Testimony Does Not Relate to Confidential Communications: Modern Trend, 38 Va. L. Rev. 359 (1952). The decision in Wyatt recognized an exception to Hawkins for cases in which one spouse commits a crime against the other. 362 U. S., at 526. This exception, placed on the ground of necessity, was a longstanding one at common law. See Lord Audley’s Case, 123 Eng. Rep. 1140 (1631); 8 Wigmore §2239. It has been expanded since then to include crimes against the spouse’s property, see Herman v. United States, 220 F. 2d 219, 226 (CA4 1955), and in recent years crimes against children of either spouse, United States v. Allery, 526 F. 2d 1362 (CA8 1975). Similar exceptions have been found to the confidential marital communications privilege. See 8 Wigmore §2338. Petitioner’s reliance on 28 U. S. C. § 2076 for the proposition that this Court is without power to reconsider Hawkins is ill-founded. That provision limits this Court’s statutory rulemaking authority by providing that rules “creating, abolishing, or modifying a privilege shall have no force or effect unless . . . approved by act of Congress.” It was enacted principally to insure that state rules of privilege would apply in diversity jurisdiction cases unless Congress authorized otherwise. In Rule 501 Congress makes clear that §2076 was not intended to prevent the federal courts from developing testimonial privilege law in federal criminal cases on a case-by-case basis “in light of reason and experience”; indeed Congress encouraged such development. Eight States provide that one spouse is incompetent to testify against the other in a criminal proceeding: see Haw. Rev. Stat. §621-18 (1976); Iowa Code § 622.7 (1979); Miss. Code Ann. § 13-1-5 (Supp. 1979); N. C. Gen. Stat. § 8-57 (Supp. 1977); Ohio Rev. Code Ann. § 2945.42 (Supp. 1979); Pa. Stat. Ann., Tit. 42, §§ 5913, 5915 (Purdon Supp. 1979); Tex. Crim. Proc. Code Ann., Art. 38.11 (Vernon 1979); Wyo. Stat. § 1-12-104 (1977). Sixteen States provide a privilege against adverse spousal testimony and vest the privilege in both spouses or in the defendant-spouse alone: see Alaska Crim. Proc. Rule 26 (b) (2); Colo. Rev. Stat. § 13-90-107 (1973) ; Idaho Code §9-203 (Supp. 1979); Mich. Comp. Laws §600.2162 (1968); Minn. Stat. §595.02 (1978); Mo. Rev. Stat. §546.260 (1978); Mont. Code Ann. §46-16-212 (1979); Neb. Rev. Stat. §27-505 (1975); Nev. Rev. Stat. §49.295 (1977); N. J. Stat. Ann. §-2A:84A-17 (West 1976); N. M. Stat. Ann. §20-4-505 (Supp. 1977); Ore. Rev. Stat. §44.040 (1977); Utah Code Ann. §78-24-8 (1977); Va. Code § 19.2-271.2 (Supp. 1979); Wash. Rev. Code § 5.60.060 (Supp. 1979); W. Ya. Code §57-3-3 (1966). Nine States entitle the witness-spouse alone to assert a privilege against adverse spousal testimony: see Ala. Code § 12-21-227 (1975); Cal. Evid. Code Ann. §§ 970-973 (West 1966 and Supp. 1979); Conn. Gen. Stat. §54-84 (1979); Ga. Code §38-1604 (1978); Ky. Rev. Stat. §421.210 (Supp. 1978); La. Rev. Stat. Ann. §15:461 .(West 1967); Md. Cts. & Jud. Proc. Code Ann. §§ 9-101, 9-106 (1974); Mass. Gen. Laws Ann., ch. 233, §20 (West Supp. 1979); R. I. Gen. Laws § 12-17-10 (1970). The remaining 17 States have abolished the privilege in criminal cases: see Ariz. Rev. Stat. Ann. § 12-2231 (Supp. 1978); Ark. Stat. Ann. § 28-101, Rules 501 and 504 (1979); Del. Code Ann., Tit. 11, § 3502 (1975); Fla. Stat. §§ 90.501, 90.504 (1979); Ill. Rev. Stat., ch. 38, § 155-1 (1977); Ind. Code §§34-1-14-4, 34-1-14-5 (1976); Kan. Stat. Ann. §§60-407, 60-428 (1976); Maine Rules of Evidence 501, 504; N. H. Rev. Stat. Ann. §516.27 (1974); N. Y. Crina. Proc. Law §60.10 (McKinney 1971); N. Y. Civ. Proc. Law §§ 4502, 4512 (McKinney 1963); N. D. Rules of Evidence 501, 504; Okla. Stat., Tit. 12, §§2103, 2501, 2504 (West Supp. 1979); S. C. Code § 19-11-30 (1976); S. D. Comp. Laws Ann. §§19-13-1, 19-13-12 to 19-13-15 (1979); Tenn. Code Ann. § 40-2404 (1975); Vt. Stat. Ann., Tit. 12, § 1605 (1973); Wis. Stat. §§ 905.01, 905.05 (1975). In 1901, Congress enacted a rule of evidence for the District of Columbia that made husband and wife “competent but not compellable to testify for or against each other,” except as to confidential communications. This provision, which vests the privilege against adverse spousal testimony in the witness-spouse, remains in effect. See 31 Stat. 1358, §§ 1068, 1069, recodified as D. C. Code § 14-306 (1973). In 1965, California took the privilege from the defendant-spouse and vested it in the witness-spouse, accepting a study commission recommendation that the “latter [was] more likely than the former to determine whether or not to claim the privilege on the basis of the probable effect ' on the marital relationship.” See Cal. Evid. Code Ann. §§ 970-973 (West 1966 and Supp. 1979) and 1 California Law Revision Commission, Recommendation and Study relating to The Marital “For and Against” Testimonial Privilege, at F-5 (1956). See also 6 California Law Revision Commission, Tentative Privileges Recommendation — Rule 27.5, pp. 243-244 (1964). Support for the common-law rule has also diminished in England. In 1972, a study group there proposed giving the privilege to the witness-spouse, on the ground that “if [the wife] is willing to give evidence . . . the law would be showing excessive concern for the preservation of marital harmony if it were to say that she must not do so.” Criminal Law Revision Committee, Eleventh Report, Evidence (General) 93. See Reutlinger, Policy, Privacy, and Prerogatives: A Critical Examination of the Proposed Federal Rules of Evidence as They Affect Marital Privilege, 61 Calif. L. Rev. 1353, 1384-1385 (1973); Orfield, The Husband-Wife 'Privileges in Federal Criminal Procedure, 24 Ohio St. L. J. 144 (1963); Rothstein, A Re-evaluation of the Privilege Against Adverse Spousal Testimony in the Light of its Purpose, 12 Int’l and Comp. L. Q. 1189 (1963); Note, 1977 Ariz. St. L. J. 411; Comment, 17 St. Louis L. J. 107 (1972); Comment, 15 Wayne L. Rev. 1287, 1334-1337 (1969); Comment, 52 J. Crim. L. 74 (1961); Note, 56 Nw. U. L. Rev. 208 (1961); Note, 32 Temp. L. Q. 351 (1959); Note, 33 Tulane L. Rev. 884 (1959). It is argued that abolishing the privilege will permit the Government to come between husband and wife, pitting one against the other. That, too, misses the mark. Neither Hawkins, nor any other privilege, prevents the Government from enlisting one spouse to give information concerning the other or to aid in the other’s apprehension. It is only the spouse’s testimony in the courtroom that is prohibited. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. DECREE The joint motion for entry of a decree is granted. For the purpose of giving effect to the decision and opinion of this Court announced in this case on March 17, 1975, 420 U. S. 515, it is Ordered, Adjudged, and Decreed as Follows: 1. As against the defendant States of Maine, New Hampshire, Massachusetts, Rhode Island, New York, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, the United States is entitled to all the lands, minerals, and other natural resources underlying the Atlantic Ocean more than three geographic miles seaward from the coastlines of those States and extending seaward to the edge of the Continental Shelf. None of the defendant States is entitled to any interest in such lands, minerals, and resources. As used in this decree, the term "coastline” means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters. 2. As against the United States, each defendant State is entitled to all the lands, minerals, and other natural resources underlying the Atlantic Ocean extending seaward from its coastline for a distance of three geographic miles, and the United States is not entitled, as against any of the defendant States, to any interest in such lands, minerals, or resources, with the exceptions provided by § 5 of the Submerged Lands Act of 1953, 67 Stat. 32, 43 U. S. C. § 1313. 3. Jurisdiction is reserved by this Court to entertain such further proceedings, including proceedings to determine the coastline of any defendant State, to enter such orders, and to issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree. The United States or any defendant State may invoke the jurisdiction so reserved by filing a motion in this Court for supplemental proceedings. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

J

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Chief Justice Vinson delivered the opinion of the Court. The Central of Georgia Railway Company, whose Trustee is the petitioner here, and its predecessor have leased and operated the property of the South Western Railroad Company since 1869. The Central went into receivership in 1932, and in 1940 entered reorganization under § 77 of the Bankruptcy Act. 49 Stat. 911, 11 U. S. C. § 205. South Western’s lease was adopted successively by Central’s Receiver and Trustees. It has, in consequence, remained solvent, and no petition for reorganization has ever been filed in its behalf. Under the plan of reorganization of the Central approved by the Interstate Commerce Commission and by the district court, South Western is given the alternative of selling its property to the reorganized company in return for a fixed amount of bonds of the latter, or of having the lease disaffirmed by the debtor and its property returned. South Western appeared specially in the reorganization proceedings and asked that its lease be adopted by the reorganized company, but on the basis of studies and estimates not now open to challenge, the Commission rejected the proposal and found that the amount offered for its properties appears “fair and equitable and to equal the value of the transportation property, and [is] approved.” Following Commission and court approval of the plan, South Western’s officers, reversing their previous stand, urged acceptance of the offer by its stockholders and signified their intention of conveying the company’s property to the Central if a majority of the stockholders voted to accept. Thereupon the respondents, who are individual stockholders of South Western, brought an action in the Superior Court of Bibb County, Georgia, where South Western’s principal office is located, asking for an injunction against South Western, its officers and directors, restraining them from certifying the company’s acceptance of the offer to the Interstate Commerce Commission or from selling the railroad’s property to the reorganized debtor if, upon a vote of the stockholders, a “mere majority” of the stock was voted in favor of the plan. The basis of the petition for injunction was the contention that under the laws of Georgia, where South Western was incorporated, the entire assets of the company cannot be sold except upon unanimous approval of the stockholders. Before a decision was reached in the state court action, a meeting of South Western’s stockholders was held at which the offer of purchase incorporated in the Central’s plan of reorganization was considered. 30,137 shares were voted in favor of acceptance against 9,057 shares favoring rejection. Petitioner, acting as Trustee of the Central, which was not a party to the state court suit, then filed a petition in the bankruptcy court asking that respondents and other stockholders of South Western be enjoined from further prosecution of the state court action, and a temporary restraining order was entered as prayed. Thereupon the state court, of its own motion, entered an interlocutory injunction restraining the officers and directors of South Western from selling its property, on the ground that such a sale under Georgia law requires unanimous consent of the stockholders. Petitioner then amended his petition in the bankruptcy court by bringing to its attention the injunctive order of the state court, and, after holding hearings, the federal district court granted a permanent injunction restraining further prosecution of the state action and declared the state court’s temporary injunction null and void as in excess of its jurisdiction. Upon appeal, the Court of Appeals for the Fifth Circuit, one judge dissenting, reversed the order of the district court. 165 F. 2d 877. We granted the petition for a writ of certiorari because of the conflict between state and federal authority and the importance of the question in the administration of the Bankruptcy Act. First. The district court’s injunction was based primarily on the premise that the plan of reorganization requires the inclusion of South Western’s lines within the system of the reorganized company. The state action is said to be an attempt on the part of respondents “to prevent the consummation of the plan as respects South Western.” Again, the court held that “the question of the consolidation, merger and sale, and under what conditions South Western may convey its property to the reorganized Company, in consummation of the plan, is not a question of State law; it is a question of Bankruptcy law — a question which arises under the Bankruptcy Act and the Interstate Commerce Act.” The court’s conclusion was, therefore, that although the question whether a Georgia railroad corporation can convey all of its properties without unanimous consent of its stockholders would ordinarily be one of state law cognizable in the state’s courts, under these circumstances the decision was one for the bankruptcy court applying federal law. We do not agree. The language of the plan and the factors which the Commission took into consideration in arriving at the amount offered South Western for its properties indicate clearly that, so far as the reorganization plan contemplates acquisition of the lessor railroad, the ordinary rules of offer and acceptance were intended to apply. That has invariably been the practice. As a consequence, we have held that the amount which may be offered a lessor is a question of “business judgment”; that “if the Commission deems it desirable to keep the leased line in the system, it must necessarily have rather broad discretion in providing modifications of the lease where, as here, the lessor is not being reorganized along with the debtor. For under that assumption the modification must be sufficiently attractive to insure acceptance by the lessor or its creditors.” Group of Institutional Investors v. Chicago, M., St. P. & P. R. Co., 318 U. S. 523, 550 (1943). The plan itself recites that the leased lines are to be acquired only “if they can be acquired on the terms hereinafter set forth.” Otherwise, the lease is to be disaffirmed and the property returned to the lessor. In addition, the record is replete with statements by the Commission, the court, and the parties that South Western’s stockholders are to have the choice open to any offeree: an unfettered right to accept or reject. Under these circumstances, we can see no reason why the ordinary incidents of a sale of the assets of a corporation should not be applicable. One of the most important of these is, of course, the question of the proportion of a corporation’s stock which must be voted in favor of accepting the offer of purchase in order to make its acceptance effective. Since, as the district court held, this would ordinarily be a question of Georgia law, we believe that substitution of any other rule of law is erroneous. Not the least of the difficulties with a contrary result is the fact that the Bankruptcy Act gives no clue to what proportion of the lessor’s stockholders must vote to accept the offer if state law is not controlling. Section 77 (e) provides that confirmation of a plan requires acceptance by creditors holding two-thirds in amount of the total allowed claims of each class voting on the plan, but that the judge may confirm the plan in any event “if he is satisfied and finds, after hearing, that it makes adequate provision for fair and equitable treatment for the interests or claims of those rejecting it.” But neither the two-thirds vote provision nor the so-called “cram-down” provision applies to a lessor not in reorganization or its stockholders. They apply to “creditors of each class whose claims have been filed and allowed in accordance with the requirements of subsection (c) of this section,” which obviously does not include a lessor-offeree. And, although South Western is a “creditor” under the specific terms of § 77 (b), its stockholders, individually, are not. The district court sought to find a federal rule permitting acceptance by a simple majority vote of the shareholders in the provisions of § 5 (11) of the Interstate Commerce Act. But that section relates to voluntary mergers, not to the purchase of a leased line as part of a plan of reorganization. The Commission can undoubtedly carry on § 5 proceedings simultaneously with § 77 reorganization proceedings, see United States v. Lowden, 308 U. S. 225 (1939), but that procedure was not followed in this case. The Commission preferred, instead, to carry out the consolidation under the authority of § 77 (b) (5) of the Bankruptcy Act, which provides that the plan of reorganization may include “the merger or consolidation of the debtor with another corporation or corporations.” That power flows from a different source than the power over consolidations under the Interstate Commerce Act. While some of the findings required of the Commission under the two Acts are similar, and § 77 (f) provides that consolidation and merger of the debtor’s property shall not be inconsistent with the provisions and purposes of chapter 1 of the Interstate Commerce Act, their procedural and jurisdictional requirements do not overlap. It may be noted, in addition, that §5(11) contains a proviso that the majority vote provision shall not apply if “a different vote is required under applicable State law, in which case the number so required shall assent.” Whether that proviso is operative when a state’s law requires unanimous consent of the shareholders is a question we need not decide. Nothing that we have said derogates in any way from decisions of this Court upholding the power of the Interstate Commerce Commission, in the exercise of its statutory obligations, to override state laws interposing obstacles in the path of otherwise lawful plans of reorganization. We have recently reaffirmed that power in cases arising under the Interstate Commerce Act. Nor is the ambit of federal power less broad in cases arising under the bankruptcy laws of the United States. Section 77 (f) of the Bankruptcy Act specifically provides that the plan of reorganization shall be put into effect, “the laws of any State or the decision or order of any State authority to the contrary notwithstanding.” The statute does not, however, give the Commission or court the right to require acceptance by a lessor not in reorganization of an offer for the purchase of its property, and no such power has been asserted by the Commission in this case. The plan of reorganization in effect hands South Western a contract of sale. Whether or not South Western signs the contract must depend not only upon its business judgment, but also upon the charter of the company and the laws of the state of its incorporation. There is therefore no occasion to override state law. The plan implicitly accepts it as controlling. The fact that the law may make acceptance of the offer less likely than would be the case if the offeree were incorporated elsewhere does not change the picture. We do not believe that Congress intended to leave to individual judges the question of whether state laws should be accepted or disregarded, Palmer v. Massachusetts, 308 U. S. 79 (1939), or to make the criterion to be applied the effect of the law upon the prospects of acceptance by the offeree. ' Second. The district court further held that even if Georgia law governs the question of the authority of South Western’s officers to sell its properties the bankruptcy court has exclusive jurisdiction to decide the state law question. We have held that a court of bankruptcy has exclusive and nondelegable control over the administration of an estate in its possession. Thompson v. Magnolia Petroleum Co., 309 U. S. 478 (1940); Isaacs v. Hobbs Tie & T. Co., 282 U. S. 734 (1931). There can be no question, however, that Congress did not give the bankruptcy court exclusive jurisdiction over all controversies that in some way affect the debtor’s estate. One exception is found in the express language of the statute. What it did give is exclusive jurisdiction of the debtor and its property wherever located. § 77 (a). The interest held by the debtor in South Western’s lines was a leasehold estate. Such an estate is the debtor’s “property” within the meaning of the Act. Any controversy involving that estate would have been within the exclusive jurisdiction of the bankruptcy court. Here, however, the question involves not the debtor’s leasehold, but the reversion in fee held by South Western as lessor. South Western was not in reorganization jointly with its lessee, nor could it have been reorganized in the Central’s proceedings. The controversy which respondents initiated in the state court, and which the district court decided after having enjoined the state proceedings, requires a determination of the rights of the stockholders of South Western inter se to sell their reversionary interest in the property. We think that the interest here involved is not part of the property of the debtor, and that the district court’s assertion of exclusive jurisdiction was error. In Ex parte Baldwin, 291 U. S. 610 (1934), we said (at p. 615): “All property in the possession of a bankrupt of which he claims the ownership passes, upon the filing of a petition in bankruptcy, into the custody of the court of bankruptcy. To protect its jurisdiction from interference, that court may issue an injunction.” In the Baldwin case this Court upheld the bankruptcy court’s exclusive jurisdiction under § 77 to adjudicate the question of forfeiture by the debtor of an easement of right of way — clearly a part of the property of the debtor of which it claimed ownership. See Thompson v. Magnolia Petroleum Co., supra. In Warren v. Palmer, 310 U. S. 132 (1940), where the debtor under § 77, the New Haven Railroad, was lessee of property but had rejected the lease and was operating the property for the account of the lessor under § 77 (c) (6), we held that the bankruptcy court had exclusive jurisdiction to fix the amount of the deficit resulting from such operation and to declare it a lien upon the property of the lessor. Since the physical property covered by the rejected lease was within the custody of the bankruptcy court, the fact that legal title remained in the lessor was thought to be immaterial. Clearly, control of the physical property must remain in the court which has the ultimate responsibility for operating it. And in order to protect the estate of the debtor from dissipation through losses suffered in the operation of the lessor’s property, responsibility for the determination of the amount of the losses and provision for their recoupment from the lessor was properly lodged in the court supervising the reorganization of the debtor. Equally clear, however, is the fact that the internal management of the lessor is not properly subject to the court’s control. The anomaly of petitioner’s position is demonstrated by the facts of the case just discussed. The New Haven reorganization was proceeding in a Connecticut federal district court, while the lessor railroad, the Boston & Providence, was in reorganization under § 77 in a Massachusetts district court. The plan of reorganization of the New Haven, like the Central’s plan in this case, contemplated the purchase of the lessor’s property. Since the Boston & Providence reorganization court had exclusive jurisdiction of its property, it can hardly be contended that the New Haven reorganization court could assume exclusive jurisdiction to decide questions arising, for example, between different classes of creditors of the Boston & Providence as to whether the New Haven’s offer should be accepted. Such a result would be incompatible with the Massachusetts district court’s exclusive jurisdiction over the property of the Boston & Providence under § 77 (a). Insofar as the power of the court reorganizing the lessee rests on its jurisdiction over the property of the debtor, the fact that the lessor here is not in reorganization in another court is immaterial. Further support for this position is found in our decision in Group of Institutional Investors v. Chicago, M., St. P. & P. R. Co., supra. The Milwaukee reorganization, in one of its aspects, presented a situation analogous to the one now before us: the lessee was in reorganization under § 77, but no proceedings had been instituted for the reorganization of the lessor of some of its lines, the Chicago, Terre Haute & Southeastern Railway Company. The reorganization plan provided for a new lease to be offered the Terre Haute, which required that the latter scale down its bonded indebtedness so that the interest thereon, which was the rental under the lease, would be substantially reduced. The plan did not, however, differentiate between the four classes of bonds of the lessor with respect to the earning power and character of the security of each, as is required in the reorganization of properties of the debtor. Certain bondholders accordingly attacked the plan as unfair, because it did not attempt to preserve the respective priorities of these bond issues. But we said (p. 546): “The short answer to that objection is that the Terre Haute properties have not been treated by the Commission or the District Court as a part of the properties of the debtor for reorganization purposes. Nor has any question been raised or argued here as to the power of the Commission or the District Court so to treat them. The Commission and the District Court considered the problem solely as one of rejection or affirmance of a lease.” It is abundantly clear that in the case before us, the interest of South Western was similarly considered. Other provisions of § 77 lend no support to petitioner’s contentions. Section 77 (b), which makes South Western a creditor in the proceedings, does not, as we have pointed out, give the bankruptcy court any control over its internal organization. It is not a creditor which can be bound by the plan without its assent, except to the extent of its claim for damages for breach of the lease and for amounts due it from the lessee. Section 77 (b) (1) provides that the plan may alter the rights of creditors, while § 77 (b) (5) requires that the plan provide adequate means for its execution, which may include merger or consolidation of the debtor with another corporation. This subsection also permits rejection of executory contracts and unexpired leases. The bankruptcy power unquestionably gives the Commission and court, working within the framework of the Act, full and complete power not only over the debtor and its property, but also, as a corollary, over any rights that may be asserted against it. These rights may be altered in any way thought necessary to achieve sound financial and operating conditions for the reorganized company, subject to the requirements of the Act. The purchase of formerly leased properties does not involve rights asserted against the debtor, however. This Court has said that “The exclusive jurisdiction granted the reorganization court by § 77 (a) is that which bankruptcy courts have customarily possessed.” Meyer v. Fleming, 327 U. S. 161, 164 (1946). We conceive the jurisdiction asserted by the district court over a solvent lessor not in reorganization to be an extension of these traditional powers not justified by any provisions of the Bankruptcy Act. A serious practical problem would arise if the consequence of rejection of the offer and return of the properties to South Western would be cessation of railroad service on the formerly leased lines. Congress has foreseen that difficulty, however. Under § 77 (c) (6), if the lessor is unable to operate the leased lines following rejection of the lease, the duty devolves upon the lessee to continue to operate the leased lines for the account of the lessor, and such operation may continue after completion of the reorganization of the lessee. We need not speculate upon the eventual disposition of South Western’s properties. Until some final disposition is made, however, we are assured that service will be maintained on its lines, and that the debtor will not be prejudiced because of the duty thrust upon it. Palmer v. Webster & Atlas National Bank, 312 U. S. 156 (1941). Third. It is argued that Continental Illinois National Bank v. Chicago, R. I. & P. R. Co., 294 U. S. 648 (1935), and other cases applying similar principles support the district court’s injunction of the state action and its determination of the issue there involved. The question specifically before the Court in the Rock Island case was this: “Under § 77 does the bankruptcy court have authority to enjoin the sale of the collateral here in question if a sale would so hinder, obstruct and delay the preparation and consummation of a plan of reorganization as probably to defeat it?” The affirmative answer given by the Court rested upon the inherent powers of a court of equity to prevent the defeat or impairment of its jurisdiction, upon § 262 of the old Judicial Code, which authorized United States courts “to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions,” and upon § 2 (15) of the Bankruptcy Act, 11U. S. C. § 11 (15), which gives bankruptcy courts the power to “Make such orders, issue such process, and enter such judgments, in addition to those specifically provided for, as may be necessary for the enforcement of the provisions of this Act.” 52 Stat. 843. Reliance upon these cases is based, however, upon the fallacy previously adverted to. The action in the Georgia courts in this case does not embarrass or delay the formulation or promulgation of a plan of reorganization. The plan has been formulated and approved. It leaves open to South Western the alternative of selling its properties to the reorganized debtor or of facing disaffirmance of the lease and the risks of separate operation of its lines. No suggestion has been made that a final decision of the state law question will be unreasonably delayed. Under these circumstances, we do not believe that the Rock Island decision provides any support for the district court’s action. As we held in Thompson v. Texas Mexican R. Co., 328 U. S. 134 (1946) at 142: “Forfeiture of leases by the court in advance of a determination by the Commission of the nature of the plan of reorganization which is necessary or desirable for the debtor may seriously interfere with the performance by the Commission of the functions entrusted to it.” See also Smith v. Hoboken R. Co., 328 U. S. 123 (1946). The same considerations do not prevail at a later stage of the proceedings, however, when, pursuant to a plan formulated by the Commission, the lease is forfeited and an offer of purchase substituted in lieu thereof. Unless the offer is a sham and the lessor’s discretion illusory, the plan may be effectively consummated whether the offeree accepts or not. The district court did not merely postpone action which would have hindered the development of the plan; it took to itself the decision of a question which the plan left open for decision elsewhere. We conclude that, under the narrow facts presented here, the bankruptcy court erred in enjoining the state court suit leading to a determination of the requirements of Georgia law with respect to sale of the entire assets of South Western. This question was already in litigation in the state court when first raised in the federal court. Title 28 U. S. C. § 2283 forbids this exercise of power, since, as we hold, the controversy does not involve property of the debtor within the jurisdiction of the bankruptcy court, and the assertion of jurisdiction by the state court is not inconsistent with the provisions of the Bankruptcy Act. Affirmed. Mr. Justice Douglas, with whom Mr. Justice Rutledge concurs, dissenting. This decision permits control over the plan of reorganization to be taken from the Interstate Commerce Commission and the District Court contrary to the provisions of § 77 and allows a state court to undo what those federal agencies have approved. The plan approved by the Commission and by the District Court provides for the “consolidation, merger or purchase” of the properties of South Western in lieu of continued operation under the lease, “if the leased properties can be acquired on the terms set forth in the Plan.” The terms of the acquisition are set forth in the plan. If the leased lines are acquired, South Western shall waive any damages on account of breach of the lease and in respect of equipment. Securities allocated to South Western shall not bear interest or dividends for any period prior to the acquisition. The plan also determines the amount of the allotment to South Western which the Commission and the court approved as “fair and equitable” and “equal the value of the transportation property.” On February 11, 1947, the Commission submitted the plan to all creditors, including South Western, for acceptance or rejection on or before midnight March 28, 1947. On March 13, 1947, the directors of South Western accepted the plan subject to the assent of the holders of a majority of its stock. The stockholders met on March 28, 1947, and accepted the plan by a vote of 30,137 to 9,057. Accordingly South Western mailed its ballot approving the plan to the Commission. The result of the balloting was certified by the Commission to the court. Thereafter the court had a hearing and confirmed the plan, specifically reserving for later adjudication the question whether it had power to enjoin action in a state court which attempted to annul the acceptance of the plan by South Western. Subsequently it held a hearing, overruled objections of the minority of South Western’s stockholders and held that the acceptance by South Western was valid under Georgia law. It accordingly issued the injunction involved in this case. It seems plain to me that the Commission and the reorganization court had exclusive jurisdiction, subject to judicial review, to determine the question of the validity of the acceptance of the plan tendered by the officers of South Western. The validity of the acceptance is, of course, a question of state law. But it has been entrusted by Congress to these federal agencies. The plan must first be approved by the Commission and then certified to the court. § 77 (d) (e). The court, after hearing, passes on the plan; and if the court approves the plan, it certifies that fact to the Commission. § 77 (e). The Commission then submits the plan to creditors and stockholders (§ 77 (e)), the lessor and its security holders being included in the definition of creditor. § 77 (b). See Group of Investors v. Milwaukee R. Co., 318 U. S. 523, 549. The Commission must then determine the result of the balloting and certify to the judge “the results of such submission.” § 77 (e). The court then “shall confirm” the plan if satisfied (1) that the requisite percentage of each class of creditors and stockholders has been obtained and (2) “that such acceptances have not been made or procured by any means forbidden by law.” § 77 (e). (Italics added.) On confirmation of the plan by the court, the plan and order of confirmation “shall, subject to the right of judicial review,” be binding upon the debtor and stockholders and “all creditors secured or unsecured, whether or not adversely affected by the plan, and whether or not their claims shall have been filed, and, if filed, whether or not approved, including creditors who have not, as well as those who have, accepted it.” §77 (f). Section 77 (f) also provides that on confirmation of the plan the debtor or any other corporation organized to carry out the plan “shall have full power and authority to, and shall put into effect and carry out the plan and the orders of the judge relative thereto, under and subject to the supervision and the control of the judge, the laws of any State or the decision or order of any State authority to the contrary notwithstanding.” (Italics added.) And § 77 (j), with exceptions not material here, gives the court power to enjoin or stay the commencement of any suit against the debtor until after final decree. The control of the court over the acceptance of the plan and over its confirmation is one of the historic instances of the “exclusive jurisdiction” vested in the court by § 77 (a). The exclusive jurisdiction of the reorganization court is one which heretofore we have zealously guarded against encroachments by state courts. See Thompson v. Texas Mexican R. Co., 328 U. S. 134. That exclusive jurisdiction is not restricted to protection of the court’s possession of the property and operation of the business. Section 77 (e) gives the reorganization court the sole authority to determine whether the acceptanees of the plan have been made or procured “by any means forbidden by law.” In this case that plainly means that the reorganization court alone had the power to ascertain whether the requisite vote of the directors and stockholders of South Western had been cast in favor of the plan. Once it determined that lawful corporate action had been taken by South Western, then § 77 (f) bound all of South Western’s stockholders, since they are included in the definition of creditors for the purposes of the Act. See Group of Investors v. Milwaukee R. Co., supra. And then the reorganization court had the express power under § 77 (f) to put the plan into effect— “the laws of any State or the decision or order of any State authority to the contrary notwithstanding.” This is precisely one of those situations where the bankruptcy court, if its exclusive jurisdiction is to be maintained, must have the power to enjoin action in state courts. It has long been recognized to have that authority in order to protect its decree. See Local Loan Co. v. Hunt, 292 U. S. 234. And the policy reflected in old § 265 of the Judicial Code — now 28 U. S. C. § 2283— which frowned on the stay of state proceedings by federal courts, has for years recognized bankruptcy jurisdiction as an exception. See Toucey v. N. Y. Life Ins. Co., 314 U. S. 118, 132. It was in recognition of the necessity for that power that Congress wrote subdivision (j) into § 77. If a state court can hold invalid acceptances whose validity has been approved by the Commission and the District Court, then the federal agencies have lost much of the exclusive jurisdiction which Congress granted them. There are myriad questions of state law underlying the consummation of every plan of reorganization. There is the question whether the new company is validly organized; whether proxies are executed in pursuance of the provisions of the state code; whether the charter of a corporation can contain certain kinds of provisions, authorize certain types of securities, etc., etc. If state courts can intrude with injunctions on such state law questions, the exclusive command of the federal agencies over the reorganization process is lost, its efficiency is undermined, and minorities are given leverages which the scheme of § 77 explicitly denies.' With respect to South Western’s property, the plan reads as follows: “Prior to or upon consummation of the plan the debtor shall also acquire, if they can be acquired on the terms hereinafter set forth, properties at present leased to the debtor by the South Western Railroad Company.... If any of these properties shall not be acquired as a result of the acceptance of the plan by the leased-line security holders, then and in that event the lease or leases of any line or lines not so acquired shall be disaffirmed as of such time at or prior to the consummation of the plan as the court may direct. The method of acquisition, whether through purchase, merger, or consolidation, shall, subject to the approval of the Commission and the court, be determined by the trustee or by the reorganization managers when they begin to function. “If the leased lines are acquired, the railroads of each of the three and the personal property appurtenant thereto and all of the real estate owned by each lessor shall be conveyed to the reorganized company; each of said lessors shall waive any damages to which it has become or shall become entitled on account of any breach of lease; and the South Western Railroad Company shall waive all claims in respect to equipment. Such conveyances and waivers shall in each instance be on the sole consideration of the delivery to each of the respective lessors of the securities proposed to be allocated to it, as hereinafter specified.” 261 I. C. C. 501, 515. 261 I. C. C. 263, 309. 333 U. S. 853. 261 I. C. C. 615. In its report approving the plan, the Commission said (261 I. C. C. at p. 308): “The lessor [South Western] insists that it has the right to severance if it cares to exercise it, and such a right will be recognized in the approved plan.” The district court, in approving the plan, commented that “If the lessors do not accept the proposal to acquire their lines they are, on disaffirmance, at liberty to take their properties back,” while counsel for the Trustee stated at a meeting of South Western’s stockholders, “The plan makes an offer to you gentlemen; that is all it does.” This precise problem has received little attention from commentators. It was not mentioned in the Committee reports or in debate when § 77 and its 1935 amendments were passed. However, the position of the leased line, a majority of whose stock is not owned by the debtor and which is not in reorganization, is analyzed by Meek, The Problems of the Leased Line, 7 Law and Contemp. Prob. 509, 518, as follows: “Upon rejection of the lease, although the leased line remains in the custody of the lessee’s trustees, it is not part of the lessee’s estate and security holders having interests in it cannot be bound in the lessee’s reorganization. Consequently, if the lessee’s plan provides for a modified lease or merger or consolidation, such a provision is little more than an offer to the lessor. Acceptance of this offer will be determined, not by submitting the lessee’s plan to the lessor’s security holders, pursuant to Section 77, but according to the law of the state where the lessor is incorporated.” It is also pointed out that when the rights of bondholders of the lessor may be affected, as was the case with Terre Haute bondholders in the Milwaukee Railroad reorganization (see Group of Institutional Investors v. Chicago, M., St. P. & P. R. Co., 318 U. S. 523, and discussion infra), nearly unanimous consent of such bondholders may be required before the changes can be made effective. The Interstate Commerce Commission took that position in the Milwaukee case and provided that the offer to Terre Haute should not be deemed accepted unless substantially all of its bondholders voted to accept. Chicago, M., St. P. & P. R. Co. Reorganization, 239 I. C. C. 485, 536-538; 240 I. C. C. 257, 270-271. See also 318 U. S. at 532-533. See In re New York, N. H. & H. R. Co., 54 F. Supp. 631, at 638. 54 Stat. 905, 49 U. S. C. § 5 (11). See In re Chicago, R. I. & P. R. Co., 168 F. 2d 587, where the State of Texas made the argument that the findings required by the Interstate Commerce Commission under subsections 2 (b), (c), and (f) of § 5 of the Interstate Commerce Act in proceedings for merger or consolidation of railroads are mandatory in proceedings under § 77 of the Bankruptcy Act. Seaboard Air Line R. Co. v. Daniel, 333 U. S. 118; Schwabacher v. United States, 334 U. S. 182; Texas v. United States, 292 U. S. 522. Arkansas Corporation Commission v. Thompson, 313 U. S. 132; Gardner v. New Jersey, 329 U. S. 565. See Thompson v. Terminal Shares, Inc., 104 F. 2d 1. Even when the controversy involves property within the exclusive jurisdiction of the bankruptcy court, that court may, in its discretion, postpone action pending adjudication of the question in another court. Ex parte Baldwin, 291 U. S. 610; Thompson v. Magnolia Petroleum Co., 309 U. S. 478; Order of Railway Conductors v. Pitney, 326 U. S. 561. See Foust v. Munson S. S. Lines, 299 U. S. 77 Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

J

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. PER CURIAM. As this Court explained in Obergefell v. Hodges, 576 U.S. ----, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), the Constitution entitles same-sex couples to civil marriage "on the same terms and conditions as opposite-sex couples." Id., at ----, 135 S.Ct., at 2605. In the decision below, the Arkansas Supreme Court considered the effect of that holding on the State's rules governing the issuance of birth certificates. When a married woman gives birth in Arkansas, state law generally requires the name of the mother's male spouse to appear on the child's birth certificate-regardless of his biological relationship to the child. According to the court below, however, Arkansas need not extend that rule to similarly situated same-sex couples: The State need not, in other words, issue birth certificates including the female spouses of women who give birth in the State. Because that differential treatment infringes Obergefell 's commitment to provide same-sex couples "the constellation of benefits that the States have linked to marriage," id., at ----, 135 S.Ct., at 2601, we reverse the state court's judgment. The petitioners here are two married same-sex couples who conceived children through anonymous sperm donation. Leigh and Jana Jacobs were married in Iowa in 2010, and Terrah and Marisa Pavan were married in New Hampshire in 2011. Leigh and Terrah each gave birth to a child in Arkansas in 2015. When it came time to secure birth certificates for the newborns, each couple filled out paperwork listing both spouses as parents-Leigh and Jana in one case, Terrah and Marisa in the other. Both times, however, the Arkansas Department of Health issued certificates bearing only the birth mother's name. The department's decision rested on a provision of Arkansas law, Ark.Code § 20-18-401 (2014), that specifies which individuals will appear as parents on a child's state-issued birth certificate. "For the purposes of birth registration," that statute says, "the mother is deemed to be the woman who gives birth to the child." § 20-18-401(e). And "[i]f the mother was married at the time of either conception or birth," the statute instructs that "the name of [her] husband shall be entered on the certificate as the father of the child." § 20-18-401(f)(1). There are some limited exceptions to the latter rule-for example, another man may appear on the birth certificate if the "mother" and "husband" and "putative father" all file affidavits vouching for the putative father's paternity. Ibid. But as all parties agree, the requirement that a married woman's husband appear on her child's birth certificate applies in cases where the couple conceived by means of artificial insemination with the help of an anonymous sperm donor. See Pet. for Cert. 4; Brief in Opposition 3-4; see also Ark.Code § 9-10-201(a) (2015) ("Any child born to a married woman by means of artificial insemination shall be deemed the legitimate natural child of the woman and the woman's husband if the husband consents in writing to the artificial insemination"). The Jacobses and Pavans brought this suit in Arkansas state court against the director of the Arkansas Department of Health-seeking, among other things, a declaration that the State's birth-certificate law violates the Constitution. The trial court agreed, holding that the relevant portions of § 20-18-401 are inconsistent with Obergefell because they "categorically prohibi[t] every same-sex married couple ... from enjoying the same spousal benefits which are available to every opposite-sex married couple." App. to Pet. for Cert. 59a. But a divided Arkansas Supreme Court reversed that judgment, concluding that the statute "pass[es] constitutional muster." 2016 Ark. 437, 505 S.W.3d 169, 177. In that court's view, "the statute centers on the relationship of the biological mother and the biological father to the child, not on the marital relationship of husband and wife," and so it "does not run afoul of Obergefell ." Id., at 178. Two justices dissented from that view, maintaining that under Obergefell "a same-sex married couple is entitled to a birth certificate on the same basis as an opposite-sex married couple." 505 S.W.3d, at 184 (Brill, C.J., concurring in part and dissenting in part); accord, id., at 190 (Danielson, J., dissenting). The Arkansas Supreme Court's decision, we conclude, denied married same-sex couples access to the "constellation of benefits that the Stat [e] ha[s] linked to marriage." Obergefell, 576 U.S., at ----, 135 S.Ct., at 2601. As already explained, when a married woman in Arkansas conceives a child by means of artificial insemination, the State will-indeed, must -list the name of her male spouse on the child's birth certificate. See § 20-18-401(f)(1) ; see also § 9-10-201 ; supra, at 2077. And yet state law, as interpreted by the court below, allows Arkansas officials in those very same circumstances to omit a married woman's female spouse from her child's birth certificate. See 505 S.W.3d, at 177-178. As a result, same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child's birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school. See Pet. for Cert. 5-7 (listing situations in which a parent might be required to present a child's birth certificate). Obergefell proscribes such disparate treatment. As we explained there, a State may not "exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples." 576 U.S., at ----, 135 S.Ct., at 2605. Indeed, in listing those terms and conditions-the "rights, benefits, and responsibilities" to which same-sex couples, no less than opposite-sex couples, must have access-we expressly identified "birth and death certificates." Id., at ----, 135 S.Ct., at 2601. That was no accident: Several of the plaintiffs in Obergefell challenged a State's refusal to recognize their same-sex spouses on their children's birth certificates. See DeBoer v. Snyder, 772 F.3d 388, 398-399 (C.A.6 2014). In considering those challenges, we held the relevant state laws unconstitutional to the extent they treated same-sex couples differently from opposite-sex couples. See 576 U.S., at ----, 135 S.Ct., at 2605. That holding applies with equal force to § 20-18-401. Echoing the court below, the State defends its birth-certificate law on the ground that being named on a child's birth certificate is not a benefit that attends marriage. Instead, the State insists, a birth certificate is simply a device for recording biological parentage-regardless of whether the child's parents are married. But Arkansas law makes birth certificates about more than just genetics. As already discussed, when an opposite-sex couple conceives a child by way of anonymous sperm donation-just as the petitioners did here-state law requires the placement of the birth mother's husband on the child's birth certificate. See supra, at 2077. And that is so even though (as the State concedes) the husband "is definitively not the biological father" in those circumstances. Brief in Opposition 4. Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships: The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents. Having made that choice, Arkansas may not, consistent with Obergefell , deny married same-sex couples that recognition. The petition for a writ of certiorari and the pending motions for leave to file briefs as amici curiae are granted. The judgment of the Arkansas Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice GORSUCH, with whom Justice THOMAS and Justice ALITO join, dissenting. Summary reversal is usually reserved for cases where "the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error." Schweiker v. Hansen, 450 U.S. 785, 791, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981) (Marshall, J., dissenting). Respectfully, I don't believe this case meets that standard. To be sure, Obergefell addressed the question whether a State must recognize same-sex marriages. But nothing in Obergefell spoke (let alone clearly) to the question whether § 20-18-401 of the Arkansas Code, or a state supreme court decision upholding it, must go. The statute in question establishes a set of rules designed to ensure that the biological parents of a child are listed on the child's birth certificate. Before the state supreme court, the State argued that rational reasons exist for a biology based birth registration regime, reasons that in no way offend Obergefell -like ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship, or susceptibility to genetic disorders. In an opinion that did not in any way seek to defy but rather earnestly engage Obergefell , the state supreme court agreed. And it is very hard to see what is wrong with this conclusion for, just as the state court recognized, nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution. To the contrary, to the extent they speak to the question at all, this Court's precedents suggest just the opposite conclusion. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 124-125, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) ; Tuan Anh Nguyen v. INS, 533 U.S. 53, 73, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001). Neither does anything in today's opinion purport to identify any constitutional problem with a biology based birth registration regime. So whatever else we might do with this case, summary reversal would not exactly seem the obvious course. What, then, is at work here? If there isn't a problem with a biology based birth registration regime, perhaps the concern lies in this particular regime's exceptions. For it turns out that Arkansas's general rule of registration based on biology does admit of certain more specific exceptions. Most importantly for our purposes, the State acknowledges that § 9-10-201 of the Arkansas Code controls how birth certificates are completed in cases of artificial insemination like the one before us. The State acknowledges, too, that this provision, written some time ago, indicates that the mother's husband generally shall be treated as the father-and in this way seemingly anticipates only opposite-sex marital unions. But if the artificial insemination statute is the concern, it's still hard to see how summary reversal should follow for at least a few reasons. First, petitioners didn't actually challenge § 9-10-201 in their lawsuit. Instead, petitioners sought and the trial court granted relief eliminating the State's authority under § 20-18-401 to enforce a birth registration regime generally based on biology. On appeal, the state supreme court simply held that this overbroad remedy wasn't commanded by Obergefell or the Constitution. And, again, nothing in today's opinion for the Court identifies anything wrong, let alone clearly wrong, in that conclusion. Second, though petitioners' lawsuit didn't challenge § 9-10-201, the State has repeatedly conceded that the benefits afforded nonbiological parents under § 9-10-201 must be afforded equally to both same-sex and opposite-sex couples. So that in this particular case and all others of its kind, the State agrees, the female spouse of the birth mother must be listed on birth certificates too. Third, further proof still of the state of the law in Arkansas today is the fact that, when it comes to adoption (a situation not present in this case but another one in which Arkansas departs from biology based registration), the State tells us that adopting parents are eligible for placement on birth certificates without respect to sexual orientation. Given all this, it seems far from clear what here warrants the strong medicine of summary reversal. Indeed, it is not even clear what the Court expects to happen on remand that hasn't happened already. The Court does not offer any remedial suggestion, and none leaps to mind. Perhaps the state supreme court could memorialize the State's concession on § 9-10-201, even though that law wasn't fairly challenged and such a chore is hardly the usual reward for seeking faithfully to apply, not evade, this Court's mandates. I respectfully dissent. As the petitioners point out, other factual scenarios (beyond those present in this case) similarly show that the State's birth certificates are about more than genetic parentage. For example, when an Arkansas child is adopted, the State places the child's original birth certificate under seal and issues a new birth certificate-unidentifiable as an amended version-listing the child's (nonbiological) adoptive parents. See Ark.Code §§ 20-18-406(a)(1), (b) (2014); Ark. Admin. Code 007.12.1-5.5(a) (Apr. 2016). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

D

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. Petitioners are a union and six of its members employed by the respondent interstate motor freight common carrier. The present action was brought in the United States District Court for the Western District of Kentucky, and jurisdiction was predicated on § 301 of the Labor Management Relations Act, 1947, 29 U. S. C. § 185. In their complaint, petitioners alleged that the respondent had refused to comply with a ruling of the Joint Area Cartage Committee, directing that the individual petitioners be reinstated with full seniority and back pay. The Committee’s ruling was asserted to have been handed down in accordance with the grievance procedures established in the collective bargaining agreement between the union and the employer. The relief demanded in the complaint included the reinstatement of the individual petitioners, with full back pay and fringe benefits to the time of reinstatement. Respondent, after filing its answer, moved to dismiss the complaint. The District Court granted the motion on the pleadings as supplemented at pretrial conference by excerpts from the Local Cartage Agreement between the union and the employer. The District Court’s ground for dismissing the complaint was want of federal jurisdiction, a result deemed compelled by our decision in Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348 U. S. 437. The Court of Appeals for the Sixth Circuit affirmed, 298 F. 2d 341, but added two more grounds in support of the order of dismissal: (1) That the determination of the Joint Area Cartage Committee was not an arbitration award and so not enforceable under § 301; (2) That on the merits petitioners were not entitled to the relief ordered by the Joint Area Cartage Committee. We granted certiorari, 371 U. S. 810. We reverse and remand to the District Court for trial. According to the allegations of the complaint, the six individual petitioners were discharged because they chose to respect and did respect a picket line established by another union at a place of business of respondent. Contending that such discharge violated Article IX of the Local Cartage Agreement, which provides in part that “it shall not be cause for discharge if any employee or employees refuse to go through the picket line of a union . . . ,” petitioners invoked the grievance machinery set up by the Agreement, and processed their grievances through the provided channels culminating in the Joint Area Cartage Committee’s determination. Article VIII, § 1 (e), of the Agreement provides: “It is agreed that all matters pertaining to the interpretation of any provisions of this contract shall be referred, at the request of any party at any time, for final decision to the Joint Area Cartage Committee . . . .” If, as petitioners allege, the award of the Joint Area Cartage Committee is under the collective bargaining agreement final and binding, the District Court has jurisdiction under § 301 to enforce it, notwithstanding our Westinghouse decision. See Textile Workers v. Lincoln Mills, 353 U. S. 448,456, n. 6; United Steelworkers v. Pullman-Standard Car Mfg. Co., 241 F. 2d 547, 551-552 (C. A. 3d Cir. 1957). Plainly, this allegation cannot be rejected on the basis merely of what the present record shows. It is not enough that the word “arbitration” does not appear in the collective bargaining agreement, for we have held that the policy of the Labor Act “can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play.” United Steelworkers v. American Mfg. Co., 363 U. S. 564, 566; cf. Retail Clerks v. Lion Dry Goods, Inc., 369 U. S. 17. Thus, if the award at bar is the parties’ chosen instrument for the definitive settlement of grievances under the Agreement, it is enforceable under § 301. And if the Joint Area Cartage Committee’s award is thus enforceable, it is of course not open to the courts to reweigh the merits of the grievance. American Mfg. Co., supra, at 567-568. Of course, if it should be decided after trial that the grievance award involved here is not final and binding under the collective bargaining agreement, no action under § 301 to enforce it will lie. Then, should petitioners seek to pursue the action as a § 301 suit for breach of contract, there may have to be considered questions unresolved by our prior decisions. We need not reach those questions here. But since the courts below placed so much reliance on the Westinghouse decision, we deem it appropriate to repeat our conclusion in Smith v. Evening News Assn., 371 U. S. 195,199, that “subsequent decisions . . . have removed the underpinnings of Westinghouse and its holding is no longer authoritative as a precedent.” Reversed and remanded. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

G

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Held : The right of way was an easement that was terminated by the railroad's abandonment, leaving Brandt's land unburdened. Pp. 1263 - 1269. (a) The Government loses this case in large part because it won when it argued the opposite in Great Northern R. Co. v. United States, 315 U.S. 262, 62 S.Ct. 529, 86 L.Ed. 836. There, the Government contended that the 1875 Act (unlike pre-1871 statutes granting rights of way) granted nothing more than an easement, and that the railroad in that case therefore had no interest in the resources beneath the surface of its right of way. This Court adopted the Government's position in full. It found the 1875 Act's text "wholly inconsistent" with the grant of a fee interest, id., at 271, 62 S.Ct. 529; agreed with the Government that cases describing the nature of rights of way granted prior to 1871 were "not controlling" because of a major shift in congressional policy concerning land grants to railroads after that year, id., at 278, 62 S.Ct. 529; and held that the 1875 Act "clearly grants only an easement," id., at 271, 62 S.Ct. 529. Under well-established common law property principles, an easement disappears when abandoned by its beneficiary, leaving the owner of the underlying land to resume a full and unencumbered interest in the land. See Smith v. Townsend, 148 U.S. 490, 499, 13 S.Ct. 634, 37 L.Ed. 533. Pp. 1263 - 1269. (b) The Government asks this Court to limit Great Northern's characterization of 1875 Act rights of way as easements to the question of who owns the oil and minerals beneath a right of way. But nothing in the 1875 Act's text supports that reading, and the Government's reliance on the similarity of the language in the 1875 Act and pre-1871 statutes directly contravenes the very premise of Great Northern : that the 1875 Act granted a fundamentally different interest than did its predecessor statutes. Nor do this Court's decisions in Stalker v. Oregon Short Line R. Co., 225 U.S. 142, 32 S.Ct. 636, 56 L.Ed. 1027, and Great Northern R. Co. v. Steinke, 261 U.S. 119, 43 S.Ct. 316, 67 L.Ed. 564, support the Government's position. The dispute in each of those cases was framed in terms of competing claims to acquire and develop a particular tract of land, and it does not appear that the Court considered-much less rejected-an argument that the railroad had only an easement in the contested land. But to the extent that those cases could be read to imply that the interest was something more, any such implication would not have survived this Court's unequivocal statement to the contrary in Great Northern. Finally, later enacted statutes, see 43 U.S.C. §§ 912, 940; 16 U.S.C. § 1248(c), do not define or shed light on the nature of the interest Congress granted to railroads in their rights of way in 1875. They instead purport only to dispose of interests (if any) the United States already possesses. Pp. 1265 - 1269. 496 Fed.Appx. 822, reversed and remanded. ROBERTS, C.J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and KAGAN, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion. Steven J. Lechner, Denver, CO, for Petitioners. Anthony A. Yang, Washington, D.C., for Respondent. Steven J. Lechner, Esq., Counsel of Record, Jeffrey W. McCoy, Esq., Mountain States Legal Foundation, Lakewood, CO, for Petitioners. Donald B. Verrilli, Jr., Solicitor General, Robert Dreher, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Anthony A. Yang, Assistant to the Solicitor General, Counsel of Record, William B. Lazarus, John L. Smeltzer, Katherine J. Barton, Department of Justice, Washington, D.C., for Respondent. Chief Justice ROBERTS delivered the opinion of the Court. In the mid-19th century, Congress began granting private railroad companies rights of way over public lands to encourage the settlement and development of the West. Many of those same public lands were later conveyed by the Government to homesteaders and other settlers, with the lands continuing to be subject to the railroads' rights of way. The settlers and their successors remained, but many of the railroads did not. This case presents the question of what happens to a railroad's right of way granted under a particular statute-the General Railroad Right-of-Way Act of 1875-when the railroad abandons it: does it go to the Government, or to the private party who acquired the land underlying the right of way? I A In the early to mid-19th century, America looked west. The period from the Louisiana Purchase in 1803 to the Gadsden Purchase in 1853 saw the acquisition of the western lands that filled out what is now the contiguous United States. The young country had numerous reasons to encourage settlement and development of this vast new expanse. What it needed was a fast and reliable way to transport people and property to those frontier lands. New technology provided the answer: the railroad. The Civil War spurred the effort to develop a transcontinental railroad, as the Federal Government saw the need to protect its citizens and secure its possessions in the West. Leo Sheep Co. v. United States, 440 U.S. 668, 674-676, 99 S.Ct. 1403, 59 L.Ed.2d 677 (1979). The construction of such a railroad would "furnish a cheap and expeditious mode for the transportation of troops and supplies," help develop "the agricultural and mineral resources of this territory," and foster settlement. United States v. Union Pacific R. Co., 91 U.S. 72, 80, 23 L.Ed. 224 (1875). The substantial benefits a transcontinental railroad could bring were clear, but building it was no simple matter. The risks were great and the costs were staggering. Popular sentiment grew for the Government to play a role in supporting the massive project. Indeed, in 1860, President Lincoln's winning platform proclaimed: "That a railroad to the Pacific Ocean is imperatively demanded by the interests of the whole country; that the Federal Government ought to render immediate and efficient aid in its construction." J. Ely, Railroads and American Law 51 (2001). But how to do it? Sufficient funds were not at hand (especially with a Civil War to fight), and there were serious reservations about the legal authority for direct financing. "The policy of the country, to say nothing of the supposed want of constitutional power, stood in the way of the United States taking the work into its own hands." Union Pacific R. Co., supra, at 81. What the country did have, however, was land-lots of it. It could give away vast swaths of public land-which at the time possessed little value without reliable transportation-in hopes that such grants would increase the appeal of a transcontinental railroad to private investors. Ely, supra, at 52-53. In the early 1860s, Congress began granting to railroad companies rights of way through the public domain, accompanied by outright grants of land along those rights of way. P. Gates, History of Public Land Law Development 362-368 (1968). The land was conveyed in checkerboard blocks. For example, under the Union Pacific Act of 1862, odd-numbered lots of one square mile apiece were granted to the railroad, while even-numbered lots were retained by the United States. Leo Sheep Co., supra, at 672-673, 686, n. 23, 99 S.Ct. 1403. Railroads could then either develop their lots or sell them, to finance construction of rail lines and encourage the settlement of future customers. Indeed, railroads became the largest secondary dispenser of public lands, after the States. Gates, supra, at 379. But public resentment against such generous land grants to railroads began to grow in the late 1860s. Western settlers, initially some of the staunchest supporters of governmental railroad subsidization, complained that the railroads moved too slowly in placing their lands on the market and into the hands of farmers and settlers. Citizens and Members of Congress argued that the grants conflicted with the goal of the Homestead Act of 1862 to encourage individual citizens to settle and develop the frontier lands. By the 1870s, legislators across the political spectrum had embraced a policy of reserving public lands for settlers rather than granting them to railroads. Id., at 380, 454-456. A House resolution adopted in 1872 summed up the change in national policy, stating: "That in the judgment of this House the policy of granting subsidies in public lands to railroads and other corporations ought to be discontinued, and that every consideration of public policy and equal justice to the whole people requires that the public lands should be held for the purpose of securing homesteads to actual settlers, and for educational purposes, as may be provided by law." Cong. Globe, 42d Cong., 2d Sess., 1585. Congress enacted the last checkerboard land-grant statute for railroads in 1871. Gates, supra, at 380. Still wishing to encourage railroad construction, however, Congress passed at least 15 special acts between 1871 and 1875 granting to designated railroads "the right of way" through public lands, without any accompanying land subsidy. Great Northern R. Co. v. United States, 315 U.S. 262, 274, and n. 9, 62 S.Ct. 529, 86 L.Ed. 836 (1942). Rather than continue to enact special legislation for each such right of way, Congress passed the General Railroad Right-of-Way Act of 1875, 18 Stat. 482, 43 U.S.C. §§ 934-939. The 1875 Act provided that "[t]he right of way through the public lands of the United States is granted to any railroad company" meeting certain requirements, "to the extent of one hundred feet on each side of the central line of said road." § 934. A railroad company could obtain a right of way by the "actual construction of its road" or "in advance of construction by filing a map as provided in section four" of the Act. Jamestown & Northern R. Co. v. Jones, 177 U.S. 125, 130-131, 20 S.Ct. 568, 44 L.Ed. 698 (1900). Section 4 in turn provided that a company could "secure" its right of way by filing a proposed map of its rail corridor with a local Department of the Interior office within 12 months after survey or location of the road. § 937. Upon approval by the Interior Department, the right of way would be noted on the land plats held at the local office, and from that day forward "all such lands over which such right of way shall pass shall be disposed of subject to the right of way." Ibid. The 1875 Act remained in effect until 1976, when its provisions governing the issuance of new rights of way were repealed by the Federal Land Policy and Management Act, § 706(a), 90 Stat. 2793. This case requires us to define the nature of the interest granted by the 1875 Act, in order to determine what happens when a railroad abandons its right of way. B Melvin M. Brandt began working at a sawmill in Fox Park, Wyoming, in 1939. He later purchased the sawmill and, in 1946, moved his family to Fox Park. Melvin's son Marvin started working at the sawmill in 1958 and came to own and operate it in 1976 until it closed, 15 years later. In 1976, the United States patented an 83-acre parcel of land in Fox Park, surrounded by the Medicine Bow-Routt National Forest, to Melvin and Lulu Brandt. (A land patent is an official document reflecting a grant by a sovereign that is made public, or "patent.") The patent conveyed to the Brandts fee simple title to the land "with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto said claimants, their successors and assigns, forever." App. to Pet. for Cert. 76. But the patent did include limited exceptions and reservations. For example, the patent "except[s] and reserv[es] to the United States from the land granted a right-of-way thereon for ditches or canals constructed by the authority of the United States"; "reserv[es] to the United States... a right-of-way for the existing Platte Access Road No. 512"; and "reserv[es] to the United States... a right-of-way for the existing Dry Park Road No. 517." Id., at 76-77 (capitalization omitted). But if those roads cease to be used by the United States or its assigns for a period of five years, the patent provides that "the easement traversed thereby shall terminate." Id., at 78. Most relevant to this case, the patent concludes by stating that the land was granted "subject to those rights for railroad purposes as have been granted to the Laramie[,] Hahn's Peak & Pacific Railway Company, its successors or assigns." Ibid. (capitalization omitted). The patent did not specify what would occur if the railroad abandoned this right of way. The right of way referred to in the patent was obtained by the Laramie, Hahn's Peak and Pacific Railroad (LHP & P) in 1908, pursuant to the 1875 Act. 1 The right of way is 66 miles long and 200 feet wide, and it meanders south from Laramie, Wyoming, through the Medicine Bow-Routt National Forest, to the Wyoming-Colorado border. Nearly a half-mile stretch of the right of way crosses Brandt's land in Fox Park, covering ten acres of that parcel. In 1911, the LHP & P completed construction of its railway over the right of way, from Laramie to Coalmont, Colorado. Its proprietors had rosy expectations, proclaiming that it would become "one of the most important railroad systems in this country." Laramie, Hahns Peak and Pacific Railway System: The Direct Gateway to Southern Wyoming, Northern Colorado, and Eastern Utah 24 (1910). But the railroad ultimately fell short of that goal. Rather than shipping coal and other valuable ores as originally hoped, the LHP & P was used primarily to transport timber and cattle. R. King, Trails to Rails: A History of Wyoming's Railroads 90 (2003). Largely because of high operating costs during Wyoming winters, the LHP & P never quite achieved financial stability. It changed hands numerous times from 1914 until 1935, when it was acquired by the Union Pacific Railroad at the urging of the Interstate Commerce Commission. Ibid.; S. Thybony, R. Rosenberg, & E. Rosenberg, The Medicine Bows: Wyoming's Mountain Country 136-138 (1985); F. Hollenback, The Laramie Plains Line 47-49 (1960). In 1987, the Union Pacific sold the rail line, including the right of way, to the Wyoming and Colorado Railroad, which planned to use it as a tourist attraction. King, supra, at 90. That did not prove profitable either, and in 1996 the Wyoming and Colorado notified the Surface Transportation Board of its intent to abandon the right of way. The railroad tore up the tracks and ties and, after receiving Board approval, completed abandonment in 2004. In 2006 the United States initiated this action seeking a judicial declaration of abandonment and an order quieting title in the United States to the abandoned right of way. In addition to the railroad, the Government named as defendants the owners of 31 parcels of land crossed by the abandoned right of way. The Government settled with or obtained a default judgment against all but one of those landowners-Marvin Brandt. He contested the Government's claim and filed a counterclaim on behalf of a family trust that now owns the Fox Park parcel, and himself as trustee.2 Brandt asserted that the stretch of the right of way crossing his family's land was a mere easement that was extinguished upon abandonment by the railroad, so that, under common law property rules, he enjoyed full title to the land without the burden of the easement. The Government countered that it had all along retained a reversionary interest in the railroad right of way-that is, a future estate that would be restored to the United States if the railroad abandoned or forfeited its interest. The District Court granted summary judgment to the Government and quieted title in the United States to the right of way over Brandt's land. 2008 WL 7185272 (D.Wyo., Apr. 8, 2008).3 The Court of Appeals affirmed. United States v. Brandt, 496 Fed.Appx. 822 (C.A.10 2012) ( per curiam ). The court acknowledged division among lower courts regarding the nature of the Government's interest (if any) in abandoned 1875 Act rights of way. But it concluded based on Circuit precedent that the United States had retained an "implied reversionary interest" in the right of way, which then vested in the United States when the right of way was relinquished. Id., at 824. We granted certiorari. 570 U.S. ----, 134 S.Ct. 48, 186 L.Ed.2d 962 (2013). II This dispute turns on the nature of the interest the United States conveyed to the LHP & P in 1908 pursuant to the 1875 Act. Brandt contends that the right of way granted under the 1875 Act was an easement, so that when the railroad abandoned it, the underlying land (Brandt's Fox Park parcel) simply became unburdened of the easement. The Government does not dispute that easements normally work this way, but maintains that the 1875 Act granted the railroads something more than an easement, reserving an implied reversionary interest in that something more to the United States. The Government loses that argument today, in large part because it won when it argued the opposite before this Court more than 70 years ago, in the case of Great Northern Railway Co. v. United States, 315 U.S. 262, 62 S.Ct. 529, 86 L.Ed. 836 (1942). In 1907, Great Northern succeeded to an 1875 Act right of way that ran through public lands in Glacier County, Montana. Oil was later discovered in the area, and Great Northern wanted to drill beneath its right of way. But the Government sued to enjoin the railroad from doing so, claiming that the railroad had only an easement, so that the United States retained all interests beneath the surface. This Court had indeed previously held that the pre-1871 statutes, granting rights of way accompanied by checkerboard land subsidies, conveyed to the railroads "a limited fee, made on an implied condition of reverter." See, e.g., Northern Pacific R. Co. v. Townsend, 190 U.S. 267, 271, 23 S.Ct. 671, 47 L.Ed. 1044 (1903). Great Northern relied on those cases to contend that it owned a "fee" interest in the right of way, which included the right to drill for minerals beneath the surface. The Government disagreed. It argued that "the 1875 Act granted an easement and nothing more," and that the railroad accordingly could claim no interest in the resources beneath the surface. Brief for United States in Great Northern R. Co. v. United States, O.T. 1941, No. 149, p. 29. "The year 1871 marks the end of one era and the beginning of a new in American land-grant history," the Government contended; thus, cases construing the pre-1871 statutes were inapplicable in construing the 1875 Act, id., at 15, 29-30. Instead, the Government argued, the text, background, and subsequent administrative and congressional construction of the 1875 Act all made clear that, unlike rights of way granted under pre-1871 land-grant statutes, those granted under the 1875 Act were mere easements. The Court adopted the United States' position in full, holding that the 1875 Act "clearly grants only an easement, and not a fee." Great Northern, 315 U.S., at 271, 62 S.Ct. 529. The Court found Section 4 of the Act "especially persuasive," because it provided that "all such lands over which such right of way shall pass shall be disposed of subject to such right of way." Ibid. Calling this language "wholly inconsistent" with the grant of a fee interest, the Court endorsed the lower court's statement that "[a]pter words to indicate the intent to convey an easement would be difficult to find." Ibid. That interpretation was confirmed, the Court explained, by the historical background against which the 1875 Act was passed and by subsequent administrative and congressional interpretation. The Court accepted the Government's position that prior cases describing the nature of pre-1871 rights of way-including Townsend, supra, at 271, 23 S.Ct. 671-were "not controlling," because of the shift in congressional policy after that year. Great Northern, supra, at 277-278, and n. 18, 62 S.Ct. 529. The Court also specifically disavowed the characterization of an 1875 Act right of way in Rio Grande Western R. Co. v. Stringham, 239 U.S. 44, 36 S.Ct. 5, 60 L.Ed. 136 (1915), as " 'a limited fee, made on an implied condition of reverter.' " Great Northern, supra, at 278-279, 62 S.Ct. 529 (quoting Stringham, supra, at 47, 36 S.Ct. 5). The Court noted that in Stringham "it does not appear that Congress' change of policy after 1871 was brought to the Court's attention," given that "[n]o brief was filed by the defendant or the United States" in that case. Great Northern, supra, at 279, and n. 20, 62 S.Ct. 529. The dissent is wrong to conclude that Great Northern merely held that "the right of way did not confer one particular attribute of fee title." Post, at 1270 (opinion of SOTOMAYOR, J.). To the contrary, the Court specifically rejected the notion that the right of way conferred even a "limited fee." 315 U.S., at 279, 62 S.Ct. 529; see also id., at 277-278, 62 S.Ct. 529 (declining to follow cases describing a right of way as a "limited," "base," or "qualified" fee). Instead, the Court concluded, it was "clear from the language of the Act, its legislative history, its early administrative interpretation and the construction placed upon it by Congress in subsequent enactments" that the railroad had obtained "only an easement in its rights of way acquired under the Act of 1875." Id., at 277, 62 S.Ct. 529; see United States v. Union Pacific R. Co., 353 U.S. 112, 119, 77 S.Ct. 685, 1 L.Ed.2d 693 (1957) (noting the conclusion in Great Northern that, in the period after 1871, "only an easement for railroad purposes was granted"); 353 U.S., at 128, 77 S.Ct. 685 (Frankfurter, J., dissenting) (observing that the Court "conclude[d] in the Great Northern case that a right of way granted by the 1875 Act was an easement and not a limited fee"). When the United States patented the Fox Park parcel to Brandt's parents in 1976, it conveyed fee simple title to that land, "subject to those rights for railroad purposes" that had been granted to the LHP & P. The United States did not reserve to itself any interest in the right of way in that patent. Under Great Northern, the railroad thus had an easement in its right of way over land owned by the Brandts. The essential features of easements-including, most important here, what happens when they cease to be used-are well settled as a matter of property law. An easement is a "nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement." Restatement (Third) of Property: Servitudes § 1.2(1) (1998). "Unlike most possessory estates, easements... may be unilaterally terminated by abandonment, leaving the servient owner with a possessory estate unencumbered by the servitude." Id.,§ 1.2, Comment d ; id., § 7.4, Comments a, f. In other words, if the beneficiary of the easement abandons it, the easement disappears, and the landowner resumes his full and unencumbered interest in the land. See Smith v. Townsend, 148 U.S. 490, 499, 13 S.Ct. 634, 37 L.Ed. 533 (1893) ("[W]hoever obtained title from the government to any... land through which ran this right of way would acquire a fee to the whole tract subject to the easement of the company, and if ever the use of that right of way was abandoned by the railroad company the easement would cease, and the full title to that right of way would vest in the patentee of the land"); 16 Op. Atty. Gen. 250, 254 (1879) ("the purchasers or grantees of the United States took the fee of the lands patented to them subject to the easement created by the act of 1824; but on a discontinuance or abandonment of that right of way the entire and exclusive property, and right of enjoyment thereto, vested in the proprietors of the soil").4 Those basic common law principles resolve this case. When the Wyoming and Colorado Railroad abandoned the right of way in 2004, the easement referred to in the Brandt patent terminated. Brandt's land became unburdened of the easement, conferring on him the same full rights over the right of way as he enjoyed over the rest of the Fox Park parcel. III Contrary to that straightforward conclusion, the Government now tells us that Great Northern did not really mean what it said. Emphasizing that Great Northern involved only the question of who owned the oil and minerals beneath a right of way, the Government asks the Court to limit its characterization of 1875 Act rights of way as "easements" to that context. Even if the right of way has some features of an easement-such as granting only a surface interest to the railroad when the Government wants the subsurface oil and minerals-the Government asks us to hold that the right of way is not an easement for purposes of what happens when the railroad stops using it. But nothing in the text of the 1875 Act supports such an improbable (and self-serving) reading. The Government argues that the similarity in the language of the 1875 Act and the pre-1871 statutes shows that Congress intended to reserve a reversionary interest in the lands granted under the 1875 Act, just as it did in the pre-1871 statutes. See Brief for United States 17-18. But that is directly contrary to the very premise of this Court's decision (and the Government's argument) in Great Northern : that the 1875 Act granted a fundamentally different interest in the rights of way than did the predecessor statutes. 315 U.S., at 277-278, 62 S.Ct. 529; see U.S. Great Northern Brief 30 ("[Great Northern's] argument... fails because it disregards the essential differences between the 1875 Act and its predecessors."). Contrary to the Government's position now-but consistent with the Government's position in 1942-Great Northern stands for the proposition that the pre-1871 statutes (and this Court's decisions construing them) have little relevance to the question of what interest the 1875 Act conveyed to railroads. The Government next contends that this Court's decisions in Stalker v. Oregon Short Line R. Co., 225 U.S. 142, 32 S.Ct. 636, 56 L.Ed. 1027 (1912), and Great Northern R. Co. v. Steinke, 261 U.S. 119, 43 S.Ct. 316, 67 L.Ed. 564 (1923), support its position that the United States retains an implied reversionary interest in 1875 Act rights of way. Brief for United States 28-32. According to the Government, both Stalker and Steinke demonstrate that those rights of way cannot be bare common law easements, because those cases concluded that patents purporting to convey the land underlying a right of way were "inoperative to pass title." Brief for United States 31 (quoting Steinke, supra, at 131, 43 S.Ct. 316); see also Tr. of Oral Arg. 28-30, 33, 40-41, 44-45. If the right of way were a mere easement, the argument goes, the patent would have passed title to the underlying land subject to the railroad's right of way, rather than failing to pass title altogether. But that is a substantial overreading of those cases. In both Stalker and Steinke, a railroad that had already obtained an 1875 Act right of way thereafter claimed adjacent land for station grounds under the Act, as it was permitted to do because of its right of way. A homesteader subsequently filed a claim to the same land, unaware of the station grounds. The question in each case was whether the railroad could build on the station grounds, notwithstanding a subsequent patent to the homesteader. The homesteader claimed priority because the railroad's station grounds map had not been recorded in the local land office at the time the homesteader filed his claim. This Court construed the 1875 Act to give the railroad priority because it had submitted its proposed map to the Department of the Interior before the homesteader filed his claim. See Stalker, supra, at 148-154, 32 S.Ct. 636;Steinke,supra, at 125-129, 43 S.Ct. 316. The dispute in each case was framed in terms of competing claims to the right to acquire and develop the same tract of land. The Court ruled for the railroad, but did not purport to define the precise nature of the interest granted under the 1875 Act. Indeed, it does not appear that the Court in either case considered-much less rejected-an argument that the railroad had obtained only an easement in the contested land, so that the patent could still convey title to the homesteader. In any event, to the extent that Stalker and Steinke could be read to imply that the railroads had been granted something more than an easement, any such implication would not have survived this Court's unequivocal statement in Great Northern that the 1875 Act "clearly grants only an easement, and not a fee." 315 U.S., at 271, 62 S.Ct. 529. Finally, the Government relies on a number of later enacted statutes that it says demonstrate that Congress believed the United States had retained a reversionary interest in the 1875 Act rights of way. Brief for United States 34-42. But each of those statutes purported only to dispose of interests the United States already possessed, not to create or modify any such interests in the first place. First, in 1906 and 1909, Congress declared forfeited any right of way on which a railroad had not been constructed in the five years after the location of the road. 43 U.S.C. § 940. The United States would "resume[ ] the full title to the lands covered thereby free and discharged of such easement," but the forfeited right of way would immediately "inure to the benefit of any owner or owners of land conveyed by the United States prior to such date." Ibid. Then, in 1922, Congress provided that whenever a railroad forfeited or officially abandoned its right of way, "all right, title, interest, and estate of the United States in said lands" (other than land that had been converted to a public highway) would immediately be transferred to either the municipality in which it was located, or else to the person who owned the underlying land. 43 U.S.C. § 912. Finally, as part of the National Trails System Improvements Act of 1988, Congress changed course and sought to retain title to abandoned or forfeited railroad rights of way, specifying that "any and all right, title, interest, and estate of the United States" in such rights of way "shall remain in the United States" upon abandonment or forfeiture. 16 U.S.C. § 1248(c). The Government argues that these statutes prove that Congress intended to retain (or at least believed it had retained) a reversionary interest in 1875 Act rights of way. Otherwise, the argument goes, these later statutes providing for the disposition of the abandoned or forfeited strips of land would have been meaningless. That is wrong. This case turns on what kind of interest Congress granted to railroads in their rights of way in 1875. Cf. Leo Sheep Co., 440 U.S., at 681, 99 S.Ct. 1403 ("The pertinent inquiry in this case is the intent of Congress when it granted land to the Union Pacific in 1862."). Great Northern answered that question: an easement. The statutes the Government cites do not purport to define (or redefine) the nature of the interest conveyed under the 1875 Act. Nor do they shed light on what kind of property interest Congress intended to convey to railroads in 1875. See United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 4 L.Ed.2d 334 (1960) ("the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one"). In other words, these statutes do not tell us whether the United States has an interest in any particular right of way; they simply tell us how any interest the United States might have should be disposed of. For pre-1871 rights of way in which the United States retained an implied reversionary interest, or for rights of way crossing public lands, these statutes might make a difference in what happens to a forfeited or abandoned right of way. But if there is no "right, title, interest, [or] estate of the United States" in the right of way, 43 U.S.C. § 912, then the statutes simply do not apply. We cannot overlook the irony in the Government's argument based on Sections 912 and Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

N

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice O’Connor delivered the opinion of the Court. This case requires us to consider to what extent the “fair use” provision of the Copyright Revision Act of 1976 (hereinafter the Copyright Act), 17 U. S. C. § 107, sanctions the unauthorized use of quotations from a public figure’s unpublished manuscript. In March 1979, an undisclosed source provided The Nation Magazine with the unpublished manuscript of “A Time to Heal: The Autobiography of Gerald R. Ford.” Working directly from the purloined manuscript, an editor of The Nation produced a short piece entitled “The Ford Memoirs — Behind the Nixon Pardon.” The piece was timed to “scoop” an article scheduled shortly to appear in Time Magazine. Time had agreed to purchase the exclusive right to print prepublication excerpts from the copyright holders, Harper & Row Publishers, Inc. (hereinafter Harper & Row), and Reader’s Digest Association, Inc. (hereinafter Reader’s Digest). As a result of The Nation article, Time canceled its agreement. Petitioners brought a successful copyright action against The Nation. On appeal, the Second Circuit reversed the lower court’s finding of infringement, holding that The Nation’s act was sanctioned as a “fair use” of the copyrighted material. We granted certiorari, 467 U. S. 1214 (1984), and we now reverse. HH In February 1977, shortly after leaving the White House, former President Gerald R. Ford contracted with petitioners Harper & Row and Reader’s Digest, to publish his as yet unwritten memoirs. The memoirs were to contain “significant hitherto unpublished material” concerning the Watergate crisis, Mr. Ford’s pardon of former President Nixon and “Mr. Ford’s reflections on this period of history, and the morality and personalities involved.” App. to Pet. for Cert. C-14—C-15. In addition to the right to publish the Ford memoirs in book form, the agreement gave petitioners the exclusive right to license prepublication excerpts, known in the trade as “first serial rights.” Two years later, as the memoirs were nearing completion, petitioners negotiated a prepubli-cation licensing agreement with Time, a weekly news magazine. Time agreed to pay $25,000, $12,500 in advance and an additional $12,500 at publication, in exchange for the right to excerpt 7,500 words from Mr. Ford’s account of the Nixon pardon. The issue featuring the excerpts was timed to appear approximately one week before shipment of the full length book version to bookstores. Exclusivity was an important consideration; Harper & Row instituted procedures designed to maintain the confidentiality of the manuscript, and Time retained the right to renegotiate the second payment should the material appear in print prior to its release of the excerpts. Two to three weeks before the Time article’s scheduled release, an unidentified person secretly brought a copy of the Ford manuscript to Victor Navasky, editor of The Nation, a political commentary magazine. Mr. Navasky knew that his possession of the manuscript was not authorized and that the manuscript must be returned quickly to his “source” to avoid discovery. 557 F. Supp. 1067, 1069 (SDNY 1983). He hastily put together what he believed was “a real hot news story” composed of quotes, paraphrases, and facts drawn exclusively from the manuscript. Ibid. Mr. Navasky attempted no independent commentary, research or criticism, in part because of the need for speed if he was to “make news” by “publishing] in advance of publication of the Ford book.” App. 416-417. The 2,250-word article, reprinted in the Appendix to this opinion, appeared on April 3, 1979. As a result of The Nation’s article, Time canceled its piece and refused to pay the remaining $12,500. Petitioners brought suit in the District Court for the Southern District of New York, alleging conversion, tortious interference with contract, and violations of the Copyright Act. After a 6-day bench trial, the District Judge found that “A Time to Heal” was protected by copyright at the time of The Nation publication and that respondents’ use of the copyrighted material constituted an infringement under the Copyright Act, §§ 106(1), (2), and (3), protecting respectively the right to reproduce the work, the right to license preparation of derivative works, and the right of first distribution of the copyrighted work to the public. App. to Pet. for Cert. C-29 — C-30. The District Court rejected respondents’ argument that The Nation’s piece was a “fair use” sanctioned by § 107 of the Act. Though billed as “hot news,” the article contained no new facts. The magazine had “published its article for profit,” taking “the heart” of “a soon-to-be published” work. This unauthorized use “caused the Time agreement to be aborted and thus diminished the value of the copyright.” 557 F. Supp., at 1072. Although certain elements of the Ford memoirs, such as historical facts and mem-oranda, were not per se copyrightable, the District Court held that it was “the totality of these facts and memoranda collected together with Ford’s reflections that made them of value to The Nation, [and] this... totality... is protected by the copyright laws.” Id., at 1072-1073. The court awarded actual damages of $12,500. A divided panel of the Court of Appeals for the Second Circuit reversed. The majority recognized that Mr. Ford’s verbatim “reflections” were original “expression” protected by copyright. But it held that the District Court had erred in assuming the “coupling [of these reflections] with uncopy-rightable fact transformed that information into a copyrighted ‘totality.’ ” 723 F. 2d 195, 205 (1983). The majority noted that copyright attaches to expression, not facts or ideas. It concluded that, to avoid granting a copyright monopoly over the facts underlying history and news, “ ‘expression’ [in such works must be confined] to its barest elements — the ordering and choice of the words themselves.” Id., at 204. Thus similarities between the original and the challenged work traceable to the copying or paraphrasing of uncopyrightable material, such as historical facts, memo-randa and other public documents, and quoted remarks of third parties, must be disregarded in evaluating whether the second author’s use was fair or infringing. “When the uncopyrighted material is stripped away, the article in The Nation contains, at most, approximately 300 words that are copyrighted. These remaining paragraphs and scattered phrases are all verbatim quotations from the memoirs which had not appeared previously in other publications. They include a short segment of Ford’s conversations with Henry Kissinger and several other individuals. Ford’s impressionistic depictions of Nixon, ill with phlebitis after the resignation and pardon, and of Nixon’s character, constitute the major portion of this material. It is these parts of the magazine piece on which [the court] must focus in [its] examination of the question whether there was a ‘fair use’ of copyrighted matter.” Id., at 206. Examining the four factors enumerated in § 107, see infra, at 547, n. 2, the majority found the purpose of the article was “news reporting,” the original work was essentially factual in nature, the 300 words appropriated were insubstantial in relation to the 2,250-word piece, and the impact on the market for the original was minimal as “the evidence [did] not support a finding that it was the very limited use of expression per se which led to Time’s decision not to print the excerpt.” The Nation’s borrowing of verbatim quotations merely “len[t] authenticity to this politically significant material... complementing the reporting of the facts.” 723 F. 2d, at 208. The Court of Appeals was especially influenced by the “politically significant” nature of the subject matter and its conviction that it is not “the purpose of the Copyright Act to impede that harvest of knowledge so necessary to a democratic state” or “chill the activities of the press by forbidding a circumscribed use of copyrighted words.” Id., at 197, 209. II We agree with the Court of Appeals that copyright is intended to increase and not to impede the harvest of knowledge. But we believe the Second Circuit gave insufficient deference to the scheme established by the Copyright Act for fostering the original works that provide the seed and substance of this harvest. The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors. Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975). Article I, § 8, of the Constitution provides: “The Congress shall have Power... to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” As we noted last Term: “[This] limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.” Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 429 (1984). “The monopoly created by copyright thus rewards the individual author in order to benefit the public.” Id., at 477 (dissenting opinion). This principle applies equally to works of fiction and nonfiction. The book at issue here, for example, was two years in the making, and began with a contract giving the author’s copyright to the publishers in exchange for their services in producing and marketing the work. In preparing the book, Mr. Ford drafted essays and word portraits of public figures and participated in hundreds of taped interviews that were later distilled to chronicle his personal viewpoint. It is evident that the monopoly granted by copyright actively served its intended purpose of inducing the creation of new material of potential historical value. Section 106 of the Copyright Act confers a bundle of exclusive rights to the owner of the copyright. Under the Copyright Act, these rights — to publish, copy, and distribute the author’s work — vest in the author of an original work from the time of its creation. §106. In practice, the author commonly sells his rights to publishers who offer royalties in exchange for their services in producing and marketing the author’s work. The copyright owner’s rights, however, are subject to certain statutory exceptions. §§107-118. Among these is § 107 which codifies the traditional privilege of other authors to make “fair use” of an earlier writer’s work. In addition, no author may copyright facts or ideas. §102. The copyright is limited to those aspects of the work — termed “expression” — that display the stamp of the author’s originality. Creation of a nonfiction work, even a compilation of pure fact, entails originality. See, e. g., Schroeder v. William Morrow & Co., 566 F. 2d 3 (CA7 1977) (copyright in gardening directory); cf. Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 58 (1884) (originator of a photograph may claim copyright in his work). The copyright holders of “A Time to Heal” complied with the relevant statutory notice and registration procedures. See §§ 106, 401, 408; App. to Pet. for Cert. C-20. Thus there is no dispute that the unpublished manuscript of “A Time to Heal,” as a whole, was protected by § 106 from unauthorized reproduction. Nor do respondents dispute that verbatim copying of excerpts of the manuscript’s original form of expression would constitute infringement unless excused as fair use. See 1 M. Nimmer, Copyright §2.11[B], p. 2-159 (1984) (hereinafter Nimmer). Yet copyright does not prevent subsequent users from copying from a prior author’s work those constituent elements that are not original — for example, quotations borrowed under the rubric of fair use from other copyrighted works, facts, or materials in the public domain — as long as such use does not unfairly appropriate the author’s original contributions. Ibid,.; A. Latman, Fair Use of Copyrighted Works (1958), reprinted as Study No. 14 in Copyright Law Revision Studies Nos. 14-16, prepared for the Senate Committee on the Judiciary, 86th Cong., 2d Sess., 7 (1960) (hereinafter Latman). Perhaps the controversy between the lower courts in this case over copyrightability is more aptly styled a dispute over whether The Nation’s appropriation of unoriginal and uncopyrightable elements encroached on the originality embodied in the work as a whole. Especially in the realm of factual narrative, the law is currently unsettled regarding the ways in which uncopyrightable elements combine with the author’s original contributions to form protected expression. Compare Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F. 2d 91 (CA2 1977) (protection accorded author’s analysis, structuring of material and marshaling of facts), with Hoehling v. Universal City Studios, Inc., 618 F. 2d 972 (CA2 1980) (limiting protection to ordering and choice of words). See, e. g., 1 Nimmer §2.11[D], at 2-164—2-165. We need not reach these issues, however, as The Nation has admitted to lifting verbatim quotes of the author’s original language totaling between 300 and 400 words and constituting some 13% of The Nation article. In using generous verbatim excerpts of Mr. Ford’s unpublished manuscript to lend authenticity to its account of the forthcoming memoirs, The Nation effectively arrogated to itself the right of first publication, an important marketable subsidiary right. For the reasons set forth below, we find that this use of the copyrighted manuscript, even stripped to the verbatim quotes conceded by The Nation to be copyrightable expression, was not a fair use within the meaning of the Copyright Act. r-H H — I I — I j <C ^ Fair use was traditionally defined as “a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.” H. Ball, Law of Copyright and Literary Property 260 (1944) (hereinafter Ball). The statutory formulation of the defense of fair use in the Copyright Act reflects the intent of Congress to codify the common-law doctrine. 3 Nimmer § 13.05. Section 107 requires a case-by-case determination whether a particular use is fair, and the statute notes four nonexclusive factors to be considered. This approach was “intended to restate the [pre-existing] judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.” H. R. Rep. No. 94-1476, p. 66 (1976) (hereinafter House Report). “[T]he author’s consent to a reasonable use of his copyrighted works ha[d] always been implied by the courts as a necessary incident of the constitutional policy of promoting the progress of science and the useful arts, since a prohibition of such use would inhibit subsequent writers from attempting to improve upon prior works and thus... frustrate the very ends sought to be attained.” Ball 260. Professor Latman, in a study of the doctrine of fair use commissioned by Congress for the revision effort, see Sony Corp. of America v. Universal City Studios, Inc., 464 U. S., at 462-463, n. 9 (dissenting opinion), summarized prior law as turning on the “importance of the material copied or performed from the point of view of the reasonable copyright owner. In other words, would the reasonable copyright owner have consented to the use?” Latman 15. As early as 1841, Justice Story gave judicial recognition to the doctrine in a case that concerned the letters of another former President, George Washington. “[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.” Folsom v. Marsh, 9 F. Cas. 842, 344-345 (No. 4,901) (CC Mass.) As Justice Story’s hypothetical illustrates, the fair use doctrine has always precluded a use that “supersede^] the use of the original.” Ibid. Accord, S. Rep. No. 94-473, p. 65 (1975) (hereinafter Senate Report). Perhaps because the fair use doctrine was predicated on the author’s implied consent to “reasonable and customary” use when he released his work for public consumption, fair use traditionally was not recognized as a defense to charges of copying from an author’s as yet unpublished works. Under common-law copyright, “the property of the author... in his intellectual creation [was] absolute until he voluntarily part[ed] with the same.” American Tobacco Co. v. Werckmeister, 207 U. S. 284, 299 (1907); 2 Nimmer § 8.23, at 8-273. This absolute rule, however, was tempered in practice by the equitable nature of the fair use doctrine. In a given case, factors such as implied consent through de facto publication on performance or dissemination of a work may tip the balance of equities in favor of prepublication use. See Copyright Law Revision — Part 2: Discussion and Comments on Report of the Register of Copyrights on General Revision of the U. S. Copyright Law, 88th Cong., 1st Sess., 27 (H. R. Comm. Print 1963) (discussion suggesting works disseminated to the public in a form not constituting a technical “publication” should nevertheless be subject to fair use); 3 Nimmer § 13.05, at 13-62, n. 2. But it has never been seriously disputed that “the fact that the plaintiff’s work is unpublished... is a factor tending to negate the defense of fair use.” Ibid. Publication of an author’s expression before he has authorized its dissemination seriously infringes the author’s right to decide when and whether it will be made public, a factor not present in fair use of published works. Respondents contend, however, that Congress, in including first publication among the rights enumerated in § 106, which are expressly subject to fair use under § 107, intended that fair use would apply in pari materia to published and unpublished works. The Copyright Act does not support this proposition. The Copyright Act represents the culmination of a major legislative reexamination of copyright doctrine. See Mills Music, Inc. v. Snyder, 469 U. S. 153, 159-160 (1985); Sony Corp. of America v. Universal City Studios, Inc., 464 U. S., at 462-463, n. 9 (dissenting opinion). Among its other innovations, it eliminated publication “as a dividing line between common law and statutory protection,” House Report, at 129, extending statutory protection to all works from the time of their creation. It also recognized for the first time a distinct statutory right of first publication, which had previously been an element of the common-law protections afforded unpublished works. The Report of the House Committee on the Judiciary confirms that “Clause (3) of section 106, establishes the exclusive right of publications.... Under this provision the copyright owner would have the right to control the first public distribution of an authorized copy... of his work.” Id., at 62. Though the right of first publication, like the other rights enumerated in § 106, is expressly made subject to the fair use provision of § 107, fair use analysis must always be tailored to the individual case. Id., at 65; 3 Nimmer §13.05[A]. The nature of the interest at stake is highly relevant to whether a given use is fair. From the beginning, those entrusted with the task of revision recognized the “overbalancing reasons to preserve the common law protection of undisseminated works until the author or his successor chooses to disclose them.” Copyright Law Revision, Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess., 41 (Comm. Print 1961). The right of first publication implicates a threshold decision by the author whether and in what form to release his work. First publication is inherently different from other §106 rights in that only one person can be the first publisher; as the contract with Time illustrates, the commercial value of the right lies primarily in exclusivity. Because the potential damage to the author from judicially enforced “sharing” of the first publication right with unauthorized users of his manuscript is substantial, the balance of equities in evaluating such a claim of fair use inevitably shifts. The Senate Report confirms that Congress intended the unpublished nature of the work to figure prominently in fair use analysis. In discussing fair use of photocopied materials in the classroom the Committee Report states: “A key, though not necessarily determinative, factor in fair use is whether or not the work is available to the potential user. If the work is ‘out of print’ and unavailable for purchase through normal channels, the user may have more justification for reproducing it.... The applicability of the fair use doctrine to unpublished works is narrowly limited since, although the work is unavailable, this is the result of a deliberate choice on the part of the copyright owner. Under ordinary circumstances, the copyright owner’s ‘right of first publication’ would outweigh any needs of reproduction for classroom purposes.” Senate Report, at 64. Although the Committee selected photocopying of classroom materials to illustrate fair use, it emphasized that “the same general standards of fair use are applicable to all kinds of uses of copyrighted material.” Id., at 65. We find unconvincing respondents’ contention that the absence of the quoted passage from the House Report indicates an intent to abandon the traditional distinction between fair use of published and unpublished works. It appears instead that the fair use discussion of photocopying of classroom materials was omitted from the final Report because educators and publishers in the interim had negotiated a set of guidelines that rendered the discussion obsolete. House Report, at 67. The House Report nevertheless incorporates the discussion by reference, citing to the Senate Report and stating: “The Committee has reviewed this discussion, and considers it still has value as an analysis of various aspects of the [fair use] problem.” Ibid. Even if the legislative history were entirely silent, we would be bound to conclude from Congress’ characterization of § 107 as a “restatement” that its effect was to preserve existing law concerning fair use of unpublished works as of other types of protected works and not to “change, narrow, or enlarge it.” Id., at 66. We conclude that the unpublished nature of a work is “[a] key, though not necessarily determinative, factor” tending to negate a defense of fair use. Senate Report, at 64. See 3 Nimmer § 13.05, at 13-62, n. 2; W. Patry, The Fair Use Privilege in Copyright Law 125 (1985) (hereinafter Patry). We also find unpersuasive respondents’ argument that fair use may be made of a soon-to-be-published manuscript on the ground that the author has demonstrated he has no interest in nonpublication. This argument assumes that the unpublished nature of copyrighted material is only relevant to letters or other confidential writings not intended for dissemination. It is true that common-law copyright was often enlisted in the service of personal privacy. See Brandeis & Warren, The Right to Privacy, 4 Harv. L. Rev. 193, 198-199 (1890). In its commercial guise, however, an author’s right to choose when he will publish is no less deserving of protection. The period encompassing the work’s initiation, its preparation, and its grooming for public dissemination is a crucial one for any literary endeavor. The Copyright Act, which accords the copyright owner the “right to control the first public distribution” of his work, House Report, at 62, echos the common law’s concern that the author or copyright owner retain control throughout this critical stage. See generally Comment, The Stage of Publication as a “Fair Use” Factor: Harper & Row, Publishers v. Nation Enterprises, 58 St. John’s L. Rev. 597 (1984). The obvious benefit to author and public alike of assuring authors the leisure to develop their ideas free from fear of expropriation outweighs any short-term “news value” to be gained from premature publication of the author’s expression. See Goldstein, Copyright and the First Amendment, 70 Colum. L. Rev. 983, 1004-1006 (1970) (The absolute protection the common law accorded to soon-to-be published works “[was] justified by [its] brevity and expedience”). The author’s control of first public distribution implicates not only his personal interest in creative control but his property interest in exploitation of prepublication rights, which are valuable in themselves and serve as a valuable adjunct to publicity and marketing. See Belushi v. Woodward, 598 F. Supp. 36 (DC 1984) (successful marketing depends on coordination of serialization and release to public); Marks, Subsidiary Rights and Permissions, in What Happens in Book Publishing 230 (C. Grannis ed. 1967) (exploitation of subsidiary rights is necessary to financial success of new books). Under ordinary circumstances, the author’s right to control the first public appearance of his undissemi-nated expression will outweigh a claim of fair use. B Respondents, however, contend that First Amendment values require a different rule under the circumstances of this case. The thrust of the decision below is that “[t]he scope of [fair use] is undoubtedly wider when the information conveyed relates to matters of high public concern.” Consumers Union of the United States, Inc. v. General Signal Corp., 724 F. 2d 1044, 1050 (CA2 1983) (construing 723 F. 2d 195 (1983) (case below) as allowing advertiser to quote Consumer Reports), cert. denied, 469 U. S. 823 (1984). Respondents advance the substantial public import of the subject matter of the Ford memoirs as grounds for excusing a use that would ordinarily not pass muster as a fair use — the piracy of verbatim quotations for the purpose of “scooping” the authorized first serialization. Respondents explain their copying of Mr. Ford’s expression as essential to reporting the news story it claims the book itself represents. In respondents’ view, not only the facts contained in Mr. Ford’s memoirs, but “the precise manner in which [he] expressed himself [were] as newsworthy as what he had to say.” Brief for Respondents 38-39. Respondents argue that the public’s interest in learning this news as fast as possible outweighs the right of the author to control its first publication. The Second Circuit noted, correctly, that copyright’s idea/ expression dichotomy “strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.” 723 F. 2d, at 203. No author may copyright his ideas or the facts he narrates. 17 U. S. C. § 102(b). See, e. g., New York Times Co. v. United States, 403 U. S. 713, 726, n. (1971) (Brennan, J., concurring) (Copyright laws are not restrictions on freedom of speech as copyright protects only form of expression and not the ideas expressed); 1 Nimmer §1.10[B][2]. As this Court long ago observed: “[T]he news element — the information respecting current events contained in the literary production — is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day.” International News Service v. Associated Press, 248 U. S. 215, 234 (1918). But copyright assures those who write and publish factual narratives such as “A Time to Heal” that they may at least enjoy the right to market the original expression contained therein as just compensation for their investment. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 575 (1977). Respondents’ theory, however, would expand fair use to effectively destroy any expectation of copyright protection in the work of a public figure. Absent such protection, there would be little incentive to create or profit in financing such memoirs, and the public would be denied an important source of significant historical information. The promise of copyright would be an empty one if it could be avoided merely by dubbing the infringement a fair use “news report” of the book. See Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F. 2d 91 (CA2 1977), cert. denied, 434 U. S. 1014 (1978). Nor do respondents assert any actual necessity for circumventing the copyright scheme with respect to the types of works and users at issue here. Where an author and publisher have invested extensive resources in creating an original work and are poised to release it to the public, no legitimate aim is served by pre-empting the right of first publication. The fact that the words the author has chosen to clothe his narrative may of themselves be “newsworthy” is not an independent justification for unauthorized copying of the author’s expression prior to publication. To paraphrase another recent Second Circuit decision: “[Respondent] possessed an unfettered right to use any factual information revealed in [the memoirs] for the purpose of enlightening its audience, but it can claim no need to ‘bodily appropriate’ [Mr. Ford’s] ‘expression’ of that information by utilizing portions of the actual [manuscript]. The public interest in the free flow of information is assured by the law’s refusal to recognize a valid copyright in facts. The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance.” Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., Inc., 621 F. 2d 57, 61 (1980) (citations omitted). Accord, Roy Export Co. Establishment v. Columbia Broadcasting System, Inc., 503 F. Supp. 1137 (SDNY 1980) (“newsworthiness” of material copied does not justify copying), aff’d, 672 F. 2d 1095 (CA2), cert. denied, 459 U. S. 826 (1982); Quinto v. Legal Times of Washington, Inc., 506 F. Supp. 554 (DC 1981) (same). In our haste to disseminate news, it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas. This Court stated in Mazer v. Stein, 347 U. S. 201, 209 (1954): “The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’” And again in Twentieth Century Music Corp. v. Aiken: “The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate [the creation of useful works] for the general public good.” 422 U. S., at 156. It is fundamentally at odds with the scheme of copyright to accord lesser rights in those works that are of greatest importance to the public. Such a notion ignores the major premise of copyright and injures author and public alike. “[T]o propose that fair use be imposed whenever the ‘social value [of dissemination]... outweighs any detriment to the artist/ would be to propose depriving copyright owners of their right in the property precisely when they encounter those users who could afford to pay for it.” Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors, 82 Colum. L. Rev. 1600, 1615 (1982). And as one commentator has noted: “If every volume that was in the public interest could be pirated away by a competing publisher,... the public [soon] would have nothing worth reading.” Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 ASCAP Copyright Law Symposium 43, 78 (1971). See generally Comment, Copyright and the First Amendment; Where Lies the Public Interest?, 59 Tulane L. Rev. 135 (1984). Moreover, freedom of thought and expression “includes both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U. S. 705, 714 (1977) (Burger, C. J.). We do not suggest this right not to speak would sanction abuse of the copyright owner’s monopoly as an instrument to suppress facts. But in the words of New York’s Chief Judge Fuld: Courts and commentators have recognized that copyright, and the right of first publication in particular, serve this countervailing First Amendment value. See Schnapper v. Foley, 215 U. S. App. D. C. 59, 667 F. 2d 102 (1981), cert. denied, 455 U. S. 948 (1982); 1 Nimmer § 1.10[B], at 1-70, n. 24; Patry 140-142. “The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas; it shields the man who wants to speak or publish when others wish him to be quiet. There is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect. ” Estate of Hemingway v. Random House, Inc., 23 N. Y. 2d 341, 348, 244 N. E. 2d 250, 255 (1968). In view of the First Amendment protections already embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use to create what amounts to a public figure exception to copyright. Whether verbatim copying from a public figure’s manuscript in a given case is or is not fair must be judged according to the traditional equities of fair use. H-l <1 Fair use is a mixed question of law and fact. Pacific & Southern Co. v. Duncan, 744 F. 2d 1490, 1495, n. 8 (CA11 1984). Where the district court has found facts sufficient to evaluate each of the statutory factors, an appellate court “need not remand for further factfinding... [but] may conclude as a matter of law that [the challenged use] do[es] not qualify as a fair use of the copyrighted work.” Id., at 1495. Thus whether The Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. PER CURIAM. A death sentence imposed by a Kentucky trial court and affirmed by the Kentucky Supreme Court has been overturned, on habeas corpus review, by the Court of Appeals for the Sixth Circuit. During the jury selection process, the state trial court excused a juror after concluding he could not give sufficient assurance of neutrality or impartiality in considering whether the death penalty should be imposed. The Court of Appeals, despite the substantial deference it must accord to state-court rulings in federal habeas proceedings, determined that excusing the juror in the circumstances of this case violated the Sixth and Fourteenth Amendments. That ruling contravenes controlling precedents from this Court, and it is now necessary to reverse the Court of Appeals by this summary disposition. Warden Randy White is the petitioner here, and the convicted prisoner, Roger Wheeler, is the respondent. In October 1997, police in Louisville, Kentucky, found the bodies of Nigel Malone and Nairobi Warfield in the apartment the couple shared. Malone had been stabbed nine times. Warfield had been strangled to death and a pair of scissors stuck out from her neck. She was pregnant. DNA taken from blood at the crime scene matched respondent's. Respondent was charged with the murders. During voir dire, Juror 638 gave equivocal and inconsistent answers when questioned about whether he could consider voting to impose the death penalty. In response to the judge's questions about his personal beliefs on the death penalty, Juror 638 said, "I'm not sure that I have formed an opinion one way or the other. I believe there are arguments on both sides of the-of it." App. to Pet. for Cert. 126a. When asked by the prosecution about his ability to consider all available penalties, Juror 638 noted he had "never been confronted with that situation in a, in a real-life sense of having to make that kind of determination." Id., at 131a. "So it's difficult for me," he explained, "to judge how I would I guess act, uh." Ibid. The prosecution sought to clarify Juror 638's answer, asking if the juror meant he was "not absolutely certain whether [he] could realistically consider" the death penalty. Id., at 132a. Juror 638 replied, "I think that would be the most accurate way I could answer your question." Ibid. During defense counsel's examination, Juror 638 described himself as "a bit more contemplative on the issue of taking a life and, uh, whether or not we have the right to take that life." Id., at 133a. Later, however, he expressed his belief that he could consider all the penalty options. Id., at 134a. The prosecution moved to strike Juror 638 for cause based on his inconsistent replies, as illustrated by his statement that he was not absolutely certain he could realistically consider the death penalty. The defense opposed the motion, arguing that Juror 638's answers indicated his ability to consider all the penalty options, despite having some reservations about the death penalty. The judge said that when she was done questioning Juror 638, she wrote in her notes that the juror " 'could consider [the] entire range' " of penalties. Id., at 138a. She further stated that she did not "see him as problematic" at the end of her examination. Ibid . But she also noted that she did not "hear him say that he couldn't realistically consider the death penalty," and reserved ruling on the motion until she could review Juror 638's testimony. Ibid. The next day, after reviewing the relevant testimony, the judge struck Juror 638 for cause. When she announced her decision to excuse the juror, the trial judge stated, "And when I went back and reviewed [the juror's] entire testimony, [the prosecution] concluded with saying, 'Would it be accurate to say that you couldn't, couldn't consider the entire range?' And his response is-I think was, 'I think that would be pretty accurate.' So, I'm going to sustain that one, too." Id., at 139a-140a. The case proceeded to trial. Respondent was convicted of both murders and sentenced to death. The Kentucky Supreme Court affirmed the convictions and the sentence. Wheeler v. Commonwealth, 121 S.W.3d 173, 189 (2003). In considering respondent's challenges to the trial court's excusal of certain jurors for cause, the Kentucky Supreme Court held that the trial judge "appropriately struck for cause those jurors that could not impose the death penalty.... There was no error and the rights of the defendant to a fair trial by a fair and impartial jury ... under both the federal and state constitutions were not violated." Id., at 179. After exhausting available state postconviction procedures, respondent sought a writ of habeas corpus under 28 U.S.C. § 2254 from the United States District Court for the Western District of Kentucky. He asserted, inter alia, that the Kentucky trial court erred in striking Juror 638 during voir dire on the ground that the juror could not give assurances that he could consider the death penalty as a sentencing option. The District Court dismissed the petition; but a divided panel of the Court of Appeals for the Sixth Circuit reversed, granting habeas relief as to respondent's sentence. Wheeler v. Simpson, 779 F.3d 366, 379 (2015). While acknowledging the deferential standard required on federal habeas review of a state conviction, the Court of Appeals held that allowing the exclusion of Juror 638 was an unreasonable application of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), and their progeny. 779 F.3d, at 372-374. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), habeas relief is authorized if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). This Court, time and again, has instructed that AEDPA, by setting forth necessary predicates before state-court judgments may be set aside, "erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, 571 U.S. ----, ----, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013). Under § 2254(d)(1), " 'a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.' " White v. Woodall, 572 U.S. ----, ----, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014) (quoting Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ). The Court of Appeals was required to apply this deferential standard to the state court's analysis of respondent's juror exclusion claim. In Witherspoon, this Court set forth the rule for juror disqualification in capital cases. Witherspoon recognized that the Sixth Amendment's guarantee of an impartial jury confers on capital defendants the right to a jury not "uncommonly willing to condemn a man to die." 391 U.S., at 521, 88 S.Ct. 1770. But the Court with equal clarity has acknowledged the State's "strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes." Uttecht v. Brown, 551 U.S. 1, 9, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007). To ensure the proper balance between these two interests, only "a juror who is substantially impaired in his or her ability to impose the death penalty under the state-law framework can be excused for cause." Ibid. As the Court explained in Witt, a juror may be excused for cause "where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law." 469 U.S., at 425-426, 105 S.Ct. 844. Reviewing courts owe deference to a trial court's ruling on whether to strike a particular juror "regardless of whether the trial court engages in explicit analysis regarding substantial impairment; even the granting of a motion to excuse for cause constitutes an implicit finding of bias." Uttecht, 551 U.S., at 7, 127 S.Ct. 2218. A trial court's "finding may be upheld even in the absence of clear statements from the juror that he or she is impaired...." Ibid. And where, as here, the federal courts review a state-court ruling under the constraints imposed by AEDPA, the federal court must accord an additional and "independent, high standard" of deference. Id., at 10, 127 S.Ct. 2218. As a result, federal habeas review of a Witherspoon -Witt claim-much like federal habeas review of an ineffective-assistance-of-counsel claim-must be " ' "doubly deferential." ' " Burt, supra, at ----, 134 S.Ct., at 13 (quoting Cullen v. Pinholster, 563 U.S. 170, 190, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) ). The Court of Appeals held that the Kentucky Supreme Court unreasonably applied Witherspoon, Witt, and their progeny when it determined that removing Juror 638 for cause was constitutional. 779 F.3d, at 372-374. The Court of Appeals determined Juror 638 "understood the decisions he would face and engaged with them in a thoughtful, honest, and conscientious manner." Id., at 373. In the Court of Appeals' estimation, the trial judge concluded the juror was not qualified only by "misapprehending a single question and answer exchange" between Juror 638 and the prosecution, id., at 374 -the exchange in which Juror 638 stated he was not absolutely certain he could realistically consider the death penalty, id., at 372. According to the Court of Appeals, Juror 638 "agreed he did not know to an absolute certainty whether he could realistically consider the death penalty, but the court proceeded as if he knew he could not ." Ibid . The Court of Appeals further determined that if the trial judge, when reviewing Juror 638's examination, had "properly processed that exchange" between Juror 638 and the prosecution, Juror 638 would not have been excused. Id., at 374. Both the analysis and the conclusion in the decision under review were incorrect. While the Court of Appeals acknowledged that deference was required under AEDPA, it failed to ask the critical question: Was the Kentucky Supreme Court's decision to affirm the excusal of Juror 638 for cause " 'so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement' "? Woodall, supra, at ----, 134 S.Ct., at 1702 (quoting Harrington, supra, at 103, 131 S.Ct. 770 ). The Court of Appeals did not properly apply the deference it was required to accord the state-court ruling. A fairminded jurist could readily conclude that the trial judge's exchange with Juror 638 reflected a "diligent and thoughtful voir dire "; that she considered with care the juror's testimony; and that she was fair in the exercise of her "broad discretion" in determining whether the juror was qualified to serve in this capital case. Uttecht, 551 U.S., at 20, 127 S.Ct. 2218. Juror 638's answers during voir dire were at least ambiguous as to whether he would be able to give appropriate consideration to imposing the death penalty. And as this Court made clear in Uttecht, "when there is ambiguity in the prospective juror's statements," the trial court is " 'entitled to resolve it in favor of the State.' " Id., at 7, 127 S.Ct. 2218 (quoting Witt, supra, at 434, 105 S.Ct. 844 ). The Court of Appeals erred in its assessment of the trial judge's reformulation of an important part of Juror 638's questioning. 779 F.3d, at 372. When excusing the juror the day after the voir dire, the trial judge said that the prosecution had asked whether the juror "couldn't consider the entire range" of penalties. App. to Pet. for Cert. 139a. The prosecution in fact asked if the juror was "not absolutely certain whether [he] could realistically consider" the entire range of penalties. Id., at 132a. The juror's confirmation that he was "not absolutely certain whether [he] could realistically consider" the death penalty, ibid ., was a reasonable basis for the trial judge to conclude that the juror was unable to give that penalty fair consideration. The trial judge's decision to excuse Juror 638 did not violate clearly established federal law by concluding that Juror 638 was not qualified to serve as a member of this capital jury. See Witt, supra, at 424-426, 105 S.Ct. 844. And similarly, the Kentucky Supreme Court's ruling that there was no error is not beyond any possibility for fairminded disagreement. The Court of Appeals noted that the deference toward trial courts recognized in Uttecht "was largely premised on the trial judge's ability to 'observe the demeanor of' " the juror. 779 F.3d, at 373 (quoting 551 U.S., at 17, 127 S.Ct. 2218 ). It concluded that deference to the trial court here supported habeas relief, because the trial judge's "initial assessment of [the juror's] answers and demeanor" did not lead her to immediately strike Juror 638 for cause. 779 F.3d, at 373-374. The Court of Appeals' conclusion conflicts with the meaning and holding of Uttecht and with a common-sense understanding of the jury selection process. Nothing in Uttecht limits the trial court to evaluating demeanor alone and not the substance of a juror's response. And the implicit suggestion that a trial judge is entitled to less deference for having deliberated after her initial ruling is wrong. In the ordinary case the conclusion should be quite the opposite. It is true that a trial court's contemporaneous assessment of a juror's demeanor, and its bearing on how to interpret or understand the juror's responses, are entitled to substantial deference; but a trial court ruling is likewise entitled to deference when made after a careful review of a formal transcript or recording. If the trial judge chooses to reflect and deliberate further, as this trial judge did after the proceedings recessed for the day, that is not to be faulted; it is to be commended. This is not a case where "the record discloses no basis for a finding of substantial impairment." Uttecht, supra, at 20, 127 S.Ct. 2218. The two federal judges in the majority below might have reached a different conclusion had they been presiding over this voir dire . But simple disagreement does not overcome the two layers of deference owed by a federal habeas court in this context. * * * The Kentucky Supreme Court was not unreasonable in its application of clearly established federal law when it concluded that the exclusion of Juror 638 did not violate the Sixth Amendment. Given this conclusion, there is no need to consider petitioner's further contention that, if there were an error by the trial court in excluding the juror, it should be subject to harmless-error analysis. And this Court does not review the other rulings of the Court of Appeals that are not addressed in this opinion. As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty. See, e.g., Parker v. Matthews, 567 U.S. ----, 132 S.Ct. 2148, 183 L.Ed.2d 32 (2012) (per curiam ); Bobby v. Dixon, 565 U.S. ----, 132 S.Ct. 26, 181 L.Ed.2d 328 (2011) (per curiam ); Bobby v. Mitts, 563 U.S. 395, 131 S.Ct. 1762, 179 L.Ed.2d 819 (2011) (per curiam ); Bobby v. Van Hook, 558 U.S. 4, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009) (per curiam ). The petition for certiorari and respondent's motion to proceed in forma pauperis are granted. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered . Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice White delivered the opinion of the Court. This case presents the question whether the Clean Water Act (CWA), 33 U. S. C. §1251 et seq., together with certain regulations promulgated under its authority by the Army Corps of Engineers, authorizes the Corps to require landowners to obtain permits from the Corps before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries. HH The relevant provisions of the Clean Water Act originated in the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, and have remained essentially unchanged since that time. Under §§301 and 502 of the Act, 33 U. S. C. §§ 1311 and 1362, any discharge of dredged or fill materials into “navigable waters” — defined as the “waters of the United States” — is forbidden unless authorized by a permit issued by the Corps of Engineers pursuant to § 404, 33 U. S. C. § 1344. After initially construing the Act to cover only waters navigable in fact, in 1975 the Corps issued interim final regulations redefining “the waters of the United States” to include not only actually navigable waters but also tributaries of such waters, interstate waters and their tributaries, and nonnavigable intrastate waters whose use or misuse could affect interstate commerce. 40 Fed. Reg. 31320 (1975). More importantly for present purposes, the Corps construed the Act to cover all “freshwater wetlands” that were adjacent to other covered waters. A “freshwater wetland” was defined as an area that is “periodically inundated” and is “normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction.” 33 CFR § 209.120(d)(2)W (1976). In 1977, the Corps refined its definition of wetlands by eliminating the reference to periodic inundation and making other minor changes. The 1977 definition reads as follows: “The term ‘wetlands’ means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for fife in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.” 33 CFR §323.2(c) (1978). In 1982, the 1977 regulations were replaced by substantively identical regulations that remain in force today. See 33 CFR §323.2 (1985). Respondent Riverside Bayview Homes, Inc. (hereafter respondent), owns 80 acres of low-lying, marshy land near the shores of Lake St. Clair in Macomb County, Michigan. In 1976, respondent began to place fill materials on its property as part of its preparations for construction of a housing development. The Corps of Engineers, believing that the property was an “adjacent wetland” under the 1975 regulation defining “waters of the United States,” filed suit in the United States District Court for the Eastern District of Michigan, seeking to enjoin respondent from filling the property without the permission of the Corps. The District Court held that the portion of respondent’s property lying below 575.5 feet above sea level was a covered wetland and enjoined respondent from filling it without a permit. Civ. No. 77-70041 (Feb. 24, 1977) (App. to Pet. for Cert. 22a); Civ. No. 77-70041 (June 21, 1979) (App. to Pet. for Cert. 32a). Respondent appealed, and the Court of Appeals remanded for consideration of the effect of the intervening 1977 amendments to the regulation. 615 F. 2d 1363 (1980). On remand, the District Court again held the property to be a wetland subject to the Corps’ permit authority. Civ. No. 77-70041 (May 10, 1981) (App. to Pet. for Cert. 42a). Respondent again appealed, and the Sixth Circuit reversed. 729 F. 2d 391 (1984). The court construed the Corps’ regulation to exclude from the category of adjacent wetlands — and hence from that of “waters of the United States” — wetlands that were not subject to flooding by adjacent navigable waters at a frequency sufficient to support the growth of aquatic vegetation. The court adopted this construction of the regulation because, in its view, a broader definition of wetlands might result in the taking of private property without just compensation. The court also expressed its doubt that Congress, in granting the Corps jurisdiction to regulate the filling of “navigable waters,” intended to allow regulation of wetlands that were not the result of flooding by navigable waters. Under the court’s reading of the regulation, respondent’s property was not within the Corps’ jurisdiction, because its semiaquatic characteristics were not the result of frequent flooding by the nearby navigable waters. Respondent was therefore free to fill the property without obtaining a permit. We granted certiorari to consider the proper interpretation of the Corps’ regulation defining “waters of the United States” and the scope of the Corps’ jurisdiction under the Clean Water Act, both of which were called into question by the Sixth Circuit’s ruling. 469 U. S. 1206 (1985). We now reverse. M h — I The question whether the Corps of Engineers may demand that respondent obtain a permit before placing fill material on its property is primarily one of regulatory and statutory interpretation: we must determine whether respondent’s property is an “adjacent wetland” within the meaning of the applicable regulation, and, if so, whether the Corps’ jurisdiction over “navigable waters” gives it statutory authority to regulate discharges of fill material into such a wetland. In this connection, we first consider the Court of Appeals’ position that the Corps’ regulatory authority under the statute and its implementing regulations must be narrowly construed to avoid a taking without just compensation in violation of the Fifth Amendment. We have frequently suggested that governmental land-use regulation may under extreme circumstances amount to a “taking” of the affected property. See, e. g., Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U. S. 172 (1985); Penn Central Transportation Co. v. New York City, 438 U. S. 104 (1978). We have never precisely defined those circumstances, see id., at 123-128; but our general approach was summed up in Agins v. Tiburon, 447 U. S. 255, 260 (1980), where we stated that the application of land-use regulations to a particular piece of property is a taking only “if the ordinance does not substantially advance legitimate state interests ... or denies an owner economically viable use of his land.” Moreover, we have made it quite clear that the mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking. See Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U. S. 264, 293-297 (1981). The reasons are obvious. A requirement that a person obtain a permit before engaging in a certain use of his or her property does not itself “take” the property in any sense: after all, the very existence of a permit system implies that permission may be granted, leaving the landowner free to use the property as desired. Moreover, even if the permit is denied, there may be other viable uses available to the owner. Only when a permit is denied and the effect of the denial is to prevent “economically viable” use of the land in question can it be said that a taking has occurred. If neither the imposition of the permit requirement itself nor the denial of a permit necessarily constitutes a taking, it follows that the Court of Appeals erred in concluding that a narrow reading of the Corps’ regulatory jurisdiction over wetlands was “necessary” to avoid “a serious taking problem.” 729 F. 2d, at 398. We have held that, in general, “[e]quitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to a taking.” Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1016 (1984) (footnote omitted). This maxim rests on the principle that so long as compensation is available for those whose property is in fact taken, the governmental action is not unconstitutional. Williamson County, swpra, at 194-195. For precisely the same reason, the possibility that the application of a regulatory program may in some instances result in the taking of individual pieces of property is no justification for the use of narrowing constructions to curtail the program if compensation will in any event be available in those cases where a taking has occurred. Under such circumstances, adoption of a narrowing construction does not constitute avoidance of a constitutional difficulty, cf. Ashwander v. TVA, 297 U. S. 288, 341-356 (1936) (Brandéis, J., concurring); it merely frustrates permissible applications of a statute or regulation. Because the Tucker Act, 28 U. S. C. §1491, which presumptively supplies a means of obtaining compensation for any taking that may occur through the operation of a federal statute, see Ruckelshaus v. Monsanto Co., supra, at 1017, is available to provide compensation for takings that may result from the Corps’ exercise of jurisdiction over wetlands, the Court of Appeals’ fears that application of the Corps’ permit program might result in a taking did not justify the court in adopting a more limited view of the Corps’ authority than the terms of the relevant regulation might otherwise support. Ill Purged of its spurious constitutional overtones, the question whether the regulation at issue requires respondent to obtain a permit before filling its property is an easy one. The regulation extends the Corps’ authority under § 404 to all wetlands adjacent to navigable or interstate waters and their tributaries. Wetlands, in turn, are defined as lands that are “inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” 33 CFR § 323.2(c) (1985) (emphasis added). The plain language of the regulation refutes the Court of Appeals’ conclusion that inundation or “frequent flooding” by the adjacent body of water is a sine qua non of a wetland under the regulation. Indeed, the regulation could hardly state more clearly that saturation by either surface or ground water is sufficient to bring an area within the category of wetlands, provided that the saturation is sufficient to and does support wetland vegetation. The history of the regulation underscores the absence of any requirement of inundation. The interim final regulation that the current regulation replaced explicitly included a requirement of “periodi[c] inundation.” 33 CFR §209.120-(d)(2)(7t) (1976). In deleting the reference to “periodic inundation” from the regulation as finally promulgated, the Corps explained that it was repudiating the interpretation of that language “as requiring inundation over a record period of years.” 42 Fed. Reg. 37128 (1977). In fashioning its own requirement of “frequent flooding” the Court of Appeals improperly reintroduced into the regulation precisely what the Corps had excised. Without the nonexistent requirement of frequent flooding, the regulatory definition of adjacent wetlands covers the property here. The District Court found that respondent’s property was “characterized by the presence of vegetation that requires saturated soil conditions for growth and reproduction,” App. to Pet. for Cert. 24a, and that the source of the saturated soil conditions on the property was ground water. There is no plausible suggestion that these findings are clearly erroneous, and they plainly bring the property within the category of wetlands as defined by the current regulation. In addition, the court found that the wetland located on respondent’s property was adjacent to a body of navigable water, since the area characterized by saturated soil conditions and wetland vegetation extended beyond the boundary of respondent’s property to Black Creek, a navigable waterway. Again, the court’s finding is not clearly erroneous. Together, these findings establish that respondent’s property is a wetland adjacent to a navigable waterway. Hence, it is part of the “waters of the United States” as defined by 33 CFR § 323.2 (1985), and if the regulation itself is valid as a construction of the term “waters of the United States” as used in the Clean Water Act, a question which we now address, the property falls within the scope of the Corps’ jurisdiction over “navigable waters” under § 404 of the Act. > J — I A An agency’s construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress. Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 125 (1985); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984). Accordingly, our review is limited to the question whether it is reasonable, in light of the language, policies, and legislative history of the Act for the Corps to exercise jurisdiction over wetlands adjacent to but not regularly flooded by rivers, streams, and other hydrographic features more conventionally identifiable as “waters.” On a purely linguistic level, it may appear unreasonable to classify “lands,” wet or otherwise, as “waters.” Such a simplistic response, however, does justice neither to the problem faced by the Corps in defining the scope of its authority under § 404(a) nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat. In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may-lie shallows, marshes, mudflats, swamps, bogs — in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of “waters” is far from obvious. Faced with such a problem of defining the bounds of its regulatory authority, an agency may appropriately look to the legislative history and underlying policies of its statutory grants of authority. Neither of these sources provides unambiguous guidance for the Corps in this case, but together they do support the reasonableness of the Corps’ approach of defining adjacent wetlands as “waters” within the meaning of § 404(a). Section 404 originated as part of the Federal Water Pollution Control Act Amendments of 1972, which constituted a comprehensive legislative attempt “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” CWA § 101, 33 U. S. C. § 1251. This objective incorporated a broad, systemic view of the goal of maintaining and improving water quality: as the House Report on the legislation put it, “the word ‘integrity’. . . refers to a condition in which the natural structure and function of ecosystems [are] maintained.” H. R. Rep. No. 92-911, p. 76 (1972). Protection of aquatic ecosystems, Congress recognized, demanded broad federal authority to control pollution, for “[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source.” S. Rep. No. 92-414, p. 77 (1972). In keeping with these views, Congress chose to define the waters covered by the Act broadly. Although the Act prohibits discharges into “navigable waters,” see CWA §§ 301(a), 404(a), 502(12), 33 U. S. C. §§ 1311(a), 1344(a), 1362(12), the Act’s definition of “navigable waters” as “the waters of the United States” makes it clear that the term “navigable” as used in the Act is of limited import. In adopting this definition of “navigable waters,” Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed “navigable” under the classical understanding of that term. See S. Conf. Rep. No. 92-1236, p. 144 (1972); 118 Cong. Rec. 33756-33757 (1972) (statement of Rep. Dingell). Of course, it is one thing to recognize that Congress intended to allow regulation of waters that might not satisfy traditional tests of navigability; it is another to assert that Congress intended to abandon traditional notions of “waters” and include in that term “wetlands” as well. Nonetheless, the evident breadth of congressional concern for protection of water quality and aquatic ecosystems suggests that it is reasonable for the Corps to interpret the term “waters” to encompass wetlands adjacent to waters as more conventionally defined. Following the lead of the Environmental Protection Agency, see 38 Fed. Reg. 10834 (1973), the Corps has determined that wetlands adjacent to navigable waters do as a general matter play a key role in protecting and enhancing water quality: “The regulation of activities that cause water pollution cannot rely on . . . artificial lines . . . but must focus on all waters that together form the entire aquatic system. Water moves in hydrologic cycles, and the pollution of this part of the aquatic system, regardless of whether it is above or below an ordinary high water mark, or mean high tide line, will affect the water quality of the other waters within that aquatic system. “For this reason, the landward limit of Federal jurisdiction under Section 404 must include any adjacent wetlands that form the border of or are in reasonable proximity to other waters of the United States, as these wetlands are part of this aquatic system.” 42 Fed. Reg. 37128 (1977). We cannot say that the Corps’ conclusion that adjacent wetlands are inseparably bound up with the “waters” of the United States — based as it is on the Corps’ and EPA’s technical expertise — is unreasonable. In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps’ ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act. This holds true even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water. The Corps has concluded that wetlands may affect the water quality of adjacent lakes, rivers, and streams even when the waters of those bodies do not actually inundate the wetlands. For example, wetlands that are not flooded by adjacent waters may still tend to drain into those waters. In such circumstances, the Corps has concluded that wetlands may serve to filter and purify water draining into adjacent bodies of water, see 33 CFR § 320.4(b)(2)(vii) (1985), and to slow the flow of surface runoff into lakes, rivers, and streams and thus prevent flooding and erosion, see §§320.4(b)(2)(iv) and (v). In addition, adjacent wetlands may “serve significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites for aquatic . . . species.” § 320-4(b)(2)(i). In short, the Corps has concluded that wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water. Again, we cannot say that the Corps’ judgment on these matters is unreasonable, and we therefore conclude that a definition of “waters of the United States” encompassing all wetlands adjacent to other bodies of water over which the Corps has jurisdiction is a permissible interpretation of the Act. Because respondent’s property is part of a wetland that actually abuts on a navigable waterway, respondent was required to have a permit in this case. B Following promulgation of the Corps’ interim final regulations in 1975, the Corps’ assertion of authority under §404 over waters not actually navigable engendered some congressional opposition. The controversy came to a head during Congress’ consideration of the Clean Water Act of 1977, a major piece of legislation aimed at achieving “interim improvements within the existing framework” of the Clean Water Act. H. R. Rep. No. 95-139, pp. 1-2 (1977). In the end, however, as we shall explain, Congress acquiesced in the administrative construction. Critics of the Corps’ permit program attempted to insert limitations on the Corps’ § 404 jurisdiction into the 1977 legislation: the House bill as reported out of committee proposed a redefinition of “navigable waters” that would have limited the Corps’ authority under § 404 to waters navigable in fact and their adjacent wetlands (defined as wetlands periodically inundated by contiguous navigable waters). H. R. 3199, 95th Cong., 1st Sess., § 16 (1977). The bill reported by the Senate Committee on Environment and Public Works, by contrast, contained no redefinition of the scope of the “navigable waters” covered by § 404, and dealt with the perceived problem of overregulation by the Corps by exempting certain activities (primarily agricultural) from the permit requirement and by providing for assumption of some of the Corps’ regulatory duties by federally approved state programs. S. 1952, 95th Cong., 1st Sess., §49(b) (1977). On the floor of the Senate, however, an amendment was proposed limiting the scope of “navigable waters” along the lines set forth in the House bill. 123 Cong. Rec. 26710-26711 (1977). In both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation. See id., at 10426-10432 (House debate); id., at 26710-26729 (Senate debate). Proponents of a more limited § 404 jurisdiction contended that the Corps’ assertion of jurisdiction over wetlands and other nonnavigable “waters” had far exceeded what Congress had intended in enacting § 404. Opponents of the proposed changes argued that a narrower definition of “navigable waters” for purposes of § 404 would exclude vast stretches of crucial wetlands from the Corps’ jurisdiction, with detrimental effects on wetlands ecosystems, water quality, and the aquatic environment generally. The debate, particularly in the Senate, was lengthy. In the House, the debate ended with the adoption of a narrowed definition of “waters”; but in the Senate the limiting amendment was defeated and the old definition retained. The Conference Committee adopted the Senate’s approach: efforts to narrow the definition of “waters” were abandoned; the legislation as ultimately passed, in the words of Senator Baker, “retain[ed] the comprehensive jurisdiction over the Nation’s waters exercised in the 1972 Federal Water Pollution Control Act.” The significance of Congress’ treatment of the Corps’ § 404 jurisdiction in its consideration of the Clean Water Act of 1977 is twofold. First, the scope of the Corps’ asserted jurisdiction over wetlands was specifically brought to Congress’ attention, and Congress rejected measures designed to curb the Corps’ jurisdiction in large part because of its concern that protection of wetlands would be unduly hampered by a narrowed definition of “navigable waters.” Although we are chary of attributing significance to Congress’ failure to act, a refusal by Congress to overrule an agency’s construction of legislation is at least some evidence of the reasonableness of that construction, particularly where the administrative construction has been brought to Congress’ attention through legislation specifically designed to supplant it. See Bob Jones University v. United States, 461 U. S. 574, 599-601 (1983); United States v. Rutherford, 442 U. S. 544, 554, and n. 10 (1979). Second, it is notable that even those who would have restricted the reach of the Corps’ jurisdiction would have done so not by removing wetlands altogether from the definition of “waters of the United States,” but only by restricting the scope of “navigable waters” under § 404 to waters navigable in fact and their adjacent wetlands. In amending the definition of “navigable waters” for purposes of §404 only, the backers of the House bill would have left intact the existing definition of “navigable waters” for purposes of § 301 of the Act, which generally prohibits discharges of pollutants into navigable waters. As the House Report explained: “‘Navigable waters’ as used in section 301 includes all of the waters of the United States including their adjacent wetlands.” H. R. Rep. No. 95-139, p. 24 (1977). Thus, even those who thought that the Corps’ existing authority under §404 was too broad recognized (1) that the definition of “navigable waters” then in force for both § 301 and § 404 was reasonably interpreted to include adjacent wetlands, (2) that the water quality concerns of the Clean Water Act demanded regulation of at least some discharges into wetlands, and (3) that whatever jurisdiction the Corps would retain over discharges of fill material after passage of the 1977 legislation should extend to discharges into wetlands adjacent to any waters over which the Corps retained jurisdiction. These views provide additional support for a conclusion that Congress in 1977 acquiesced in the Corps’ definition of waters as including adjacent wetlands. Two features actually included in the legislation that Congress enacted in 1977 also support the view that the Act authorizes the Corps to regulate discharges into wetlands. First, in amending §404 to allow federally approved state permit programs to supplant regulation by the Corps of certain discharges of fill material, Congress provided that the States would not be permitted to supersede the Corps’ jurisdiction to regulate discharges into actually navigable waters and waters subject to the ebb and flow of the tide, “including wetlands adjacent thereto.” CWA § 404(g)(1), 33 U. S. C. § 1344(g)(1). Here, then, Congress expressly stated that the term “waters” included adjacent wetlands. Second, the 1977 Act authorized an appropriation of $6 million for completion by the Department of Interior of a “National Wetlands Inventory” to assist the States “in the development and operation of programs under this Act.” CWA §208(i)(2), 33 U. S. C. §1288(i)(2). The enactment of this provision reflects congressional recognition that wetlands are a concern of the Clean Water Act and supports the conclusion that in defining the waters covered by the Act to include wetlands, the Corps is “implementing congressional policy rather than embarking on a frolic of its own.” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 375 (1969). C We are thus persuaded that the language, policies, and history of the Clean Water Act compel a finding that the Corps has acted reasonably in interpreting the Act to require permits for the discharge of fill material into wetlands adjacent to the “waters of the United States.” The regulation in which the Corps has embodied this interpretation by its terms includes the wetlands on respondent’s property within the class of waters that may not be filled without a permit; and, as we have seen, there is no reason to interpret the regulation more narrowly than its terms would indicate. Accordingly, the judgment of the Court of Appeals is Reversed. With respect to certain waters, the Corps’ authority may be transferred to States that have devised federally approved permit programs. CWA § 404(g), as added, 91 Stat. 1600, 33 U. S. C. § 1344(g). Absent such an approved program, the Corps retains jurisdiction under § 404 over all “waters of the United States.” The regulations also cover certain wetlands not necessarily adjacent to other waters. See 33 CFR §§ 323.2(a)(2) and (3) (1985). These provisions are not now before us. In denying the Government’s petition for rehearing, the panel reiterated somewhat more strongly its belief that the Corps’ construction of its regulation was “overbroad and inconsistent with the language of the Act.” 729 F. 2d, at 401. Even were the Court of Appeals correct in concluding that a narrowing construction of the regulation is necessary to avoid takings of property through the application of the permit requirement, the construction adopted — which requires a showing of frequent flooding before property may be classified as a wetland — is hardly tailored to the supposed difficulty. Whether the denial of a permit would constitute a taking in any given case would depend upon the effect of the denial on the owner’s ability to put the property to productive use. Whether the property was frequently flooded would have no particular bearing on this question, for overbroad regulation of even completely submerged property may constitute a taking. See, e. g., Kaiser Aetna v. United States, 444 U. S. 164 (1979). Indeed, it may be more likely that denying a permit to fill frequently flooded property will prevent economically viable use of the property than denying a permit to fill property that is wet but not flooded. Of course, by excluding a large chunk of the Nation’s wetlands from the regulatory definition, the Court of Appeals’ construction might tend to limit the gross number of takings that the permit program would otherwise entail; but the construction adopted still bears an insufficiently precise relationship with the problem it seeks to avoid. United States v. Security Industrial Bank, 459 U. S. 70 (1982), in which we adopted a narrowing construction of a statute to avoid a taking difficulty, is not to the contrary. In that case, the problem was that there was a substantial argument that retroactive application of a particular provision of the Bankruptcy Code would in every ease constitute a taking; the solution was to avoid the difficulty by construing the statute to apply only prospectively. Such an approach is sensible where it appears that there is an identifiable class of cases in which application of a statute will necessarily constitute a taking. As we have observed, this is not such a case: there is no identifiable set of instances in which mere application of the permit requirement will necessarily or even probably constitute a taking. The approach of adopting a limiting construction is thus unwarranted. Because the Corps has now denied respondent a permit to fill its property, respondent may well have a ripe claim that a taking has occurred. On the record before us, however, we have no basis for evaluating this claim, because no evidence has been introduced that bears on the question of the extent to which denial of a permit to fill this property will prevent economically viable uses of the property or frustrate reasonable investment-backed expectations. In any event, this lawsuit is not the proper forum for resolving such a dispute: if the Corps has indeed effectively taken respondent’s property, respondent’s proper course is not to resist the Corps’ suit for enforcement by denying that the regulation covers the property, but to initiate a suit for compensation in the Claims Court. In so stating, of course, we do not rule that respondent will be entitled to compensation for any temporary denial of use of its property should the Corps ultimately relent and allow it to be filled. We have not yet resolved the question whether compensation is a constitutionally mandated remedy for “temporary regulatory takings,” see Williamson County Planning Comm’n v. Hamilton Bank, 473 U. S. 172 (1985), and this case provides no occasion for deciding the issue. The Court of Appeals seems also to have rested its frequent-flooding requirement on the language in the regulation stating that wetlands encompass those areas that “under normal circumstances do support” aquatic or semiaquatic vegetation. In the preamble to the final regulation, the Corps explained that this language was intended in part to exclude areas characterized by the “abnormal presence of aquatic vegetation in a non-aquatic area.” 42 Fed. Reg. 37128 (1977). Apparently, the Court of Appeals concluded that the growth of wetlands vegetation in soils saturated by ground water rather than flooded by waters emanating from an adjacent navigable water or its tributaries was “abnormal” within the meaning of the preamble. This interpretation is untenable in light of the explicit statements in both the regulation and its preamble that areas saturated by ground water can fall within the category of wetlands. It would be nonsensical for the Corps to define wetlands to include such areas and then in the same sentence exclude them on the ground that the presence of wetland vegetation in such areas was abnormal. Evidently, the Corps had something else in mind when it referred to “abnormal” growth of wetlands vegetation — namely, the aberrational presence of such vegetation in dry, upland areas. We are not called upon to address the question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water, see 33 CFR §§ 323.2(a)(2) and (3) (1985), and we do not express any opinion on that question. Of course, it may well be that not every adjacent wetland is of great importance to the environment of adjoining bodies of water. But the existence of such cases does not seriously undermine the Corps’ decision to define all adjacent wetlands as “waters.” If it is reasonable for the Corps to conclude that in the majority of cases, adjacent wetlands have significant effects on water quality and the aquatic ecosystem, its definition can stand. That the definition may include some wetlands that are not significantly intertwined with the ecosystem of adjacent waterways is of little moment, for where it appears that a wetland covered by the Corps’ definition is in fact lacking in importance to the aquatic environment — or where its importance is outweighed by other values — the Corps may always allow development of the wetland for other uses simply by issuing a permit. See 33 CFR § 320.4(b)(4) (1985). 123 Cong. Rec. 39209 (1977); see also id., at 39210 (statement of Sen. Wallop); id., at 39196 (statement of Sen. Randolph); id., at 38950 (statement of Rep. Murphy); id., at 38994 (statement of Rep. Ambro). To be sure, §404(g)(1) does not conclusively determine the construction to be placed on the use of the term “waters” elsewhere in the Act (particularly in § 502(7), which contains the relevant definition of “navigable waters”); however, in light of the fact that the various provisions of the Act should be read in pari materia, it does at least suggest strongly that the term “waters” as used in the Act does not necessarily exclude “wetlands.” Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Stewart delivered the opinion of the Court. A person claiming to be aggrieved by a violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, may not maintain a suit for redress in federal district court until he has first unsuccessfully pursued certain avenues of potential administrative relief. In this litigation the petitioner employee filed a complaint in the United States District Court for the District of Colorado, alleging that his employer, the respondent Pullman Company, had engaged in employment practices violative of Title VII. The court dismissed the complaint, holding that the statutory prerequisites to the maintenance of the suit had not been met. The Court of Appeals affirmed, 430 P. 2d 49, and we granted certiorari to consider the question of federal law presented. 401 U. S. 907. The petitioner was employed by the Pullman Company as a “porter-in-charge.” In 1963 and again in 1965, he complained to the Colorado Civil Rights Commission, alleging that the porters-in-charge, most of whom, like the petitioner, were Negroes, performed the same functions as conductors, most of whom were white, yet at lower pay. The proceedings of the Colorado Commission terminated in 1965 without reaching a resolution of the controversy satisfactory to the petitioner. On May 23, 1966, the Equal Employment Opportunity Commission received from the petitioner a “letter of inquiry” which complained of this same alleged discrimination. In accord with its usual practice, the Commission treated this letter as a complaint but did not formally file it. Instead, to insure compliance with Title VII’s procedural requirements, EEOC orally advised the Colorado Commission that it had received a complaint from the petitioner. By letter of June 1, 1966, the Colorado Commission informed EEOC that it waived the opportunity to take further action on the petitioner’s grievance, and the EEOC then proceeded with its own investigation. The investigation resulted in a finding of probable cause to believe that the charge of discrimination was true, but the EEOC was unsuccessful in its attempts to obtain Pullman’s voluntary compliance. This lawsuit followed. The basis for the holding of the Court of Appeals was its finding that the charge of discrimination had not been “filed” with EEOC by the petitioner in conformity with the requirements of the Act. Two such requirements are critical here. Section 706 (b) of the Act, 42 U. S. C. § 2000e-5 (b), provides that where there exists a state or local agency authorized to grant or seek relief against employment discrimination, "no charge may be filed [with the EEOC] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated . . . .” Section 706 (d), 42 U. S. C. § 2000e-5 (d), requires that the complaint to the EEOC “shall be filed by the person aggrieved within two hundred and ten days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier . . . The EEOC takes the position that these requirements were fulfilled by the procedure followed here, whereby a charge filed with the EEOC prior to exhaustion of the state remedy was referred by it to the state agency, and then formally filed once the state agency indicated that it would decline to take action. The Court of Appeals, on the other hand, regarded this procedure as a “manipulation of the filing date,” not contemplated or permitted by the statute or by the EEOC regulations then in force. We hold that the filing procedure followed here fully complied with the intent of the Act, and we thus reverse the judgment of the Court of Appeals. Nothing in the Act suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself, nor is there any requirement that the complaint to the state agency be made in writing rather than by oral referral. Further, we cannot agree with the respondent’s claim that the EEOC may not properly hold a complaint in “suspended animation,” automatically filing it upon termination of the state proceedings. We see no reason why further action by the aggrieved party should be required. The procedure complies with the purpose both of § 706 (b), to give state agencies a prior opportunity to consider discrimination complaints, and of § 706 (d), to ensure expedition in the filing and handling of those complaints. The respondent makes no showing of prejudice to its interests. To require a second “filing” by the aggrieved party after termination of state proceedings would serve no purpose other than the creation of an additional procedural technicality. Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process. The judgment is Reversed. Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of these cases. §§ 701-716 (c), 42 U. S. C. §§ 2000e to 2000e-15. Title 29 CFR §1601.11 (b) (1971) provides: “[A] charge is deemed filed when the Commission receives from the person aggrieved a written statement sufficiently precise to identify the parties and to describe generally the action or practices complained of. . . .” The Court of Appeals first adopted the reasoning of the District Court: The state commission had terminated the proceedings initiated by petitioner in July 1965, and petitioner failed to complain to the EEOC within the 30-day time period prescribed in §706 (d), 42 U. S. C. § 2000e-5 (d). Regarding this statutory time requirement as jurisdictional, the District Court dismissed the complaint. When the Government entered the case on a petition for rehearing to the Court of Appeals, it pointed out that Title VII had not gone into effect at the time of the events underlying petitioner’s applications to the state commission. Thus, the state commission’s termination of proceedings in 1965 did not toll the 30-day period for appeal to the EEOC. Respondent cites the following language of § 706 (b), 42 U. S. C. § 2000e-5 (b): “If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.” Nothing in this language implies that a state proceeding may not be commenced by an oral complaint; the statute guards against state proceedings that are difficult to commence, not against ones that are easily begun. The Court of Appeals expressed concern that if EEOC could ignore the requirement of 29 CFR § 1601.11 (b) (1971) that a charge is deemed filed when received, it could file any complaint whenever it chose, thereby nullifying the various statutory time requirements. But the statutory prohibition of § 706 (b) against filing charges that have not been referred to a state or local authority necessarily creates an exception to the regulation requiring filing on receipt. See Comment, A Look at Love v. Pullman, 37 U. Chi. L. Rev. 181, 188 (1969). When a member of EEOC, rather than an aggrieved party, files a complaint with EEOC, “the Commission shall, before taking any action with respect to such charge, notify the appropriate State or local officials and, upon request, afford them a reasonable time, but not less than sixty days ... to remedy the practice alleged.” Title VII, §706 (c), 42 U. S. C. §2000^5 (c). It is clear that Congress found nothing wrong, in this circumstance, with EEOC’s holding the charge in abeyance until a state agency is given the chance to act. There is no reason to think that Congress would disapprove this procedure when complaints are initiated by aggrieved parties; the difference in wording between §706 (b) and § 706 (c) seems to be only a reflection of the different persons who initiate the charge. Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1214 n. 117 (1971). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. The judgment is reversed. Texas & P. R. Co. v. Gulf, C. & S. F. R. Co., 270 U. S. 266, 278. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Brennan delivered the opinion of the Court. This case, which consists of two actions consolidated below, Wells Fargo Bank v. United States and Rosenberg v. United States, 86-2 USTC ¶ 13,703 (CD Cal. 1986), presents two issues: first, whether certain state and local public housing agency obligations (Project Notes or Notes) were exempt from federal estate taxation prior to June 19, 1984, and second, if so, whether § 641 of the Deficit Reduction Act of 1984 (DEFRA), 98 Stat. 939, which forecloses any refund for estate taxes paid on such Project Notes, is unconstitutional. Relying on Haffner v. United States, 585 F. Supp. 354 (ND Ill. 1984), aff’d, 757 F. 2d 920 (CA7 1985), the District Court for the Central District of California ruled that Project Notes were exempt. It further held § 641 of the DEFRA unconstitutional. The United States appealed that judgment directly to this Court pursuant to 28 U. S. C. § 1252. We noted probable jurisdiction sub nom. United States v. Crocker National Bank, 481 U. S. 1047 (1987), and now reverse. In the late 1930’s, the Nation faced a severe housing shortage. To meet that crisis, Congress enacted the Housing Act of 1937, 50 Stat. 888 et seq., which was designed to stimulate local financing of housing projects by empowering state and local housing authorities to issue tax-free obligations, termed “Project Notes.” For almost 50 years after the Act’s passage, it was generally assumed that this exempted the Notes from federal income tax, but not from federal estate tax. See Committee on Tax Exempt Financing, Section of Taxation, ABA, Report on the Tax Provisions of the United States Housing Act of 1937: Beyond the Looking Glass, 33 Tax Lawyer 71, 105 (1979); Rev. Rul. 81-63, 1981-1 Cum. Bull. 455. However, in 1984, the District Court for the Northern District of Illinois ruled that Project Notes were exempt from estate taxes as well, basing its decision on a variety of statutory construction tools. Haffner v. United States, supra. The District Court’s judgment caused a “rush to market” for Project Notes, and also prompted those who had already paid estate taxes on the Notes to seek refunds. Within months of the District Court’s ruling, Congress enacted the DEFRA, § 641 of which, effective June 19, 1984, eliminated the purported estate tax exemption for Project Notes, and also foreclosed those who had already paid estate taxes on Project Notes from obtaining a refund thereon. Against this backdrop, we turn to the facts of the instant appeal. The Wells Fargo appellees are the executors of the estate of Jules C. Stein, who died in April 1981. Included in the estate are Project Notes with an aggregate face value of $9,550,000. They filed an estate tax return listing these notes as taxable, and paid the tax. In June 1984, following the Haffner decision, appellees timely filed an amended estate tax return declaring that the Project Notes were exempt from taxation and claiming a refund. After the Commissioner of Internal Revenue rejected their claim, they brought suit in the District Court for the Central District of California. The Rosenberg appellees are the coexecutors of the estate of Morris Folb, who died in July 1982. Project Notes with face values totaling $250,000 are part of the estate. Appellees filed an estate tax return, and, like the Wells Fargo appellees, included the Project Notes as taxable assets and paid tax on them. In August 1984, also like the Wells Fargo appellees, they filed their amended tax return claiming that the Project Notes were exempt from estate taxation. The Commissioner denied their claim and they too filed suit in the Central District of California, where their case was consolidated with Wells Fargo. On cross-motions for summary judgment the District Court concluded, as mentioned above, that the Project Notes were tax exempt when the returns were filed, relying on the reasoning in Haffner. The court also held that § 641 of the DEFRA unconstitutionally denied appellees due process and equal protection of the laws as guaranteed by the Fifth Amendment. Although it is the portion of the judgment declaring an Act of Congress unconstitutional that provides us with appellate jurisdiction, such an appeal brings the entire case before us. United States v. Locke, 471 U. S. 84, 92 (1985). Moreover, our established practice is to resolve statutory questions at the outset where to do so might obviate the need to consider a constitutional issue. Ibid.; Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandéis, J., concurring). Therefore, we consider first the question whether the statute exempts Project Notes from estate taxation. Informing our examination of this issue is the settled principle that exemptions from taxation are not to be implied; they must be unambiguously proved. E. g., Oklahoma Tax Comm’n v. United States, 319 U. S. 598, 606 (1943); United States Trust Co. v. Helvering, 307 U. S. 57, 60 (1939); Rapid Transit Corp. v. New York, 303 U. S. 573, 592-593 (1938). Appellees do not dispute, however, that 26 U. S. C. §§ 2001 and 2002 (1982 ed. and Supp. III), which define the taxable estate for estate tax calculation, by their terms include the Project Notes. Only by referring outside the Internal Revenue Code, specifically to § 5(e) of the Housing Act of 1937, 50 Stat. 890, as amended, 42 U. S. C. § 1437i(b), do appellees endeavor to establish their exemption. Of course, we begin our analysis of § 5(e) with the statutory language itself. This section states that “[Project Notes], including interest thereon, . . . shall be exempt from all taxation now or hereafter imposed by the United States.” Well before the Housing Act was passed, an exemption of property from all taxation had an understood meaning: the property was exempt from direct taxation, but certain privileges of ownership, such as the right to transfer the property, could be taxed. Underlying this doctrine is the distinction between an excise tax, which is levied upon the use or transfer of property even though it might be measured by the property’s value, and a tax levied upon the property itself. The former has historically been permitted even where the latter has been constitutionally or statutorily forbidden. The estate tax is a form of excise tax. Greiner v. Lewellyn, 258 U. S. 384 (1922) (municipal bonds subject to federal estate taxation notwithstanding an intergovernmental tax immunity- barring a direct tax on the bond); Murdock v. Ward, 178 U. S. 139, 148 (1900) (federal tax exemption on federal bonds did not extend to taxation on the right to transfer the bonds at death); Plummer v. Coler, 178 U. S. 115 (1900) (State may calculate estate tax based on total value of property passing through the estate, including federal obligations exempt from direct taxation by the State). See also United States Trust Co. v. Helvering, supra, at 60 (applying the rule of Greiner, Murdock, and Plummer to hold that property subject to a general exemption from “all taxation” would not exempt it from excise taxes such as the estate tax); Treas. Reg. § 20.2033-1, 26 CFR § 20.2033-1 (Supp. 1964) (statutes exempting federal obligations from “all taxation” refer only to direct taxation). Cf. West v. Oklahoma Tax Comm’n, 334 U. S. 717, 727 (1948) (recognizing the distinction between direct taxes and excise taxes); Reinecke v. Northern Trust Co., 278 U. S. 339, 347 (1929) (same). Consistent with this understanding, on the rare occasions when Congress has exempted property from estate taxation it has generally adverted explicitly to that tax, rather than generically to “all taxation.” E. g., Revenue Act of 1934, § 404, 48 Stat. 754, repealed by the Revenue Act of 1962, § 18, 76 Stat. 1052. Placed in context, then, § 5(e) does not stand for appellees’ proposition that Project Notes were intended to be exempt from estate taxes; it stands for exactly the opposite. Appellees attempt to bolster their contrary view with various indicia of an alleged congressional intent. Although these considerations were found compelling in Haffner, we conclude, as did the Tax Court in Estate of Egger v. Commissioner, 89 T. C. 726 (1987), that the factors appellees rely upon, whether considered alone or in combination, are insufficient to demonstrate that Congress intended to exempt Project Notes from estate taxation in contravention of the understood meaning of § 5(e), a demonstration which must be unambiguous under the principle disfavoring implied tax exemptions. Appellees’ first argument centers on § 20 of the Housing Act of 1937, 50 Stat. 898, later repealed, which gave the newly created United States Housing Authority the power to issue bonds and other obligations. Section 20(b) provided that “[s]uch obligations shall be exempt, both as to principal and interest, from all taxation (except surtaxes, estate, inheritance, and gift taxes) now or hereafter imposed . . . .” The familiar argument goes that Congress knew how to limit the scope of the exemption when it wanted to do so; its decision not to include limiting language in § 5(e), in light of an express limitation in § 20(b), demonstrates an intent to exempt Project Notes from estate tax. This argument does not withstand careful scrutiny. In 1937, when the Housing Act was passed, what is now the income tax comprised two parts: a “normal” tax set at a flat 4 percent, and a graduated “surtax” with rates reaching up to 75 percent. As is plain from the face of § 20(b), Congress intended federal housing obligations to be exempt only from the normal tax. Yet as the normal tax and the surtax were both direct, simply making the federal obligations “exempt from all taxation” would exempt too much. Thus, Congress “excepted” surtaxes from the exemption. But that exception, if left by itself, would have created its own anomaly: the strict application of the rule “expressio unius est exclusio alterius” — i. e., the expression of one is the exclusion of others — would have resulted in exempting these obligations from all taxes, direct or indirect, except the surtax. To avoid that particular pitfall, Congress also excepted estate, inheritance, and gift taxes from § 20(b). Such language was commonplace when Congress sought to exempt items from the normal tax, but not the surtax. E. g., Home Owners’ Loan Act of 1933, § 4(c), 48 Stat. 130; Farm Credit Act of 1933, § 63, 48 Stat. 267. In contrast, § 5(e) needed no parenthetical exception. Congress fully intended Project Notes to be exempt from surtaxes as well as normal taxes, and thus exempting them “from all taxation” stated with precision the congressional will. We cannot attribute to Congress an intent to break new ground in tax law by cleverly hiding an estate tax exemption, discernable only by comparing two unrelated provisions of the Housing Act. Nor would it make sense for Congress to legislate in such a bizarre fashion. If Congress really wanted to create an especially broad tax exemption for Project Notes, as appellees assert, one would expect it to do so notoriously enough to attract investors, not surreptitiously enough to evade detection for half a century. Appellees’ second indicator of congressional intent is a statement made by Senator Walsh during the floor debate. In the midst of a lengthy speech, he stated: “Obligations, including interest thereon, issued by public housing agencies, . . . are to be exempt from all taxation now or hereafter imposed by the United States. In other words, the bill gives the public housing agencies the right to issue tax-exempt bonds, which means they are free from income tax, surtax, estate, gift, and inheritance taxes.” 81 Cong. Rec. 8085 (1937). If, as appears from the statement’s structure, the Senator intended to offer a definition of “tax-exempt bonds,” then we must conclude that he misspoke, for as we have already demonstrated, tax-exempt bonds were presumed to be exempt only from direct taxes. Even if, as appellees assert, the Senator intended to refer solely to Project Notes, we do not deem his statement compelling in this case. The relevant passage comes in the middle of a long speech, and no similar expression is to be found in any other legislative debate or document. This short, isolated comment simply cannot overcome the understood meaning of §5(e) and the presumption against implied tax exemptions. Appellees also assert that Congress’ intent can be discerned by reference to a rejected administration housing proposal, which contained in its analogue to §5(e) an express statement that Project Notes would be subject to estate taxes. We are unpersuaded by appellees’ contention that the Finance Committee’s decision not to include a similar express reference to the estate tax indicates a desire to exempt Project Notes from that tax. Equally plausible is that the Committee omitted the express exception as unnecessary. Further, neither the administration, the Finance Committee, nor even a single Senator considered this difference worthy of comment, although numerous other variations between the two proposals received attention. Finally, appellees point to a statement Warren J. Vinton, who later became the first Chief Economist of the United States Housing Authority, made to the American Federation of Housing Authorities shortly after the Housing Act was passed. He stated that Project Notes were “exempt from all Federal taxes, not only normal income taxes but surtax, inheritance tax, and gift tax. Investments of that nature are getting rare in the country.” Brief for Appellees Wells Fargo Bank et al. 15 (emphasis added in brief omitted). However, at the time he uttered these words, Vinton was not yet employed by the Housing Authority. We cannot attribute to this isolated comment the aura of a contemporaneous agency interpretation. The understood meaning of §5(e) and the presumption against implied tax exemptions are too powerful to be overcome by the indicia of congressional intent put forward by appellees. Accordingly, we conclude that the Housing Act of 1937 does not exempt Project Notes from estate taxation. We therefore need not consider the constitutionality of § 641 of the DEFRA. The judgment of the District Court is Reversed. Justice Kennedy took no part in the consideration or decision of this case. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

L

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice O’Connor delivered the opinion of the Court. United States Customs officials seized $8,850 in currency from the claimant as she passed through customs at Los Angeles International Airport. The question in this case is whether the Government’s 18-month delay in filing a civil proceeding for forfeiture of the currency violates the claimant’s right to due process of law. We conclude that the four-factor balancing test of Barker v. Wingo, 407 U. S. 514 (1972), provides the relevant framework for determining whether the delay in filing a forfeiture action was reasonable. Applying the Barker test to the circumstances of this case, we find no unreasonable delay. I A Section 231 of the Bank Secrecy Act of 1970, 84 Stat. 1122, 31 U. S. C. § 1101, requires persons knowingly transporting monetary instruments exceeding $5,000 into the United States to file a report with the Customs Service declaring the amount being transported. Congress has authorized the Government to seize and forfeit any monetary instruments for which a required report was not filed. 31 U. S. C. § 1102(a). Since the Bank Secrecy Act does not specify the procedures to be followed in seizing monetary instruments, the Customs Service generally follows the procedures governing forfeitures for violations of the customs laws, as set forth in 19 U. S. C. § 1602 et seq. (1976 ed. and Supp. V), and the implementing regulations. Under these procedures, the Customs Service notifies any person who appears to have an interest in the seized property of the property’s liability to forfeiture and of the claimant’s right to petition the Secretary of the Treasury for remission or mitigation of the forfeiture. See 19 CFR § 162.31(a) (1982). The regulations require a claimant to file the petition within 60 days. 19 CFR § 171.12(b) (1982). If the claimant does not file a petition, or if the decision on a petition makes legal proceedings appear necessary, the appropriate customs officer must prepare a full report of the seizure for the United States Attorney. 19 U. S. C. § 1603 (1976 ed., Supp. V). Upon receipt of a report, the United States Attorney is required “immediately to inquire into the facts” and, if it appears probable that a forfeiture has been incurred, “forthwith to cause the proper proceedings to be commenced and prosecuted, without delay.” 19 U. S. C. § 1604 (1976 ed., Supp. V). After a case is reported to the United States Attorney for institution of legal proceedings, no administrative action may be taken on any petition for remission or mitigation. 19 CFR § 171.2(a) (1982). The Customs Service processes over 50,000 noncontra-band forfeitures per year. U. S. Customs Service, Customs U. S. A. 36 (1982). In 90% of all seizures, the claimant files an administrative petition for remission or mitigation. Brief for United States 7. The Secretary in turn grants at least partial relief for an estimated 75% of the petitions. Ibid. Typically, this relief terminates the dispute without the filing of a forfeiture action in district court. B On September 10, 1975, claimant Mary Josephine Vasquez and a companion arrived at Los Angeles International Airport after a short visit to Canada. During customs processing, Vasquez declared that she was not carrying more than $5,000 in currency. Nevertheless, a customs inspector discovered and seized $8,850 in United States currency from her. On September 18, 1975, the Customs Service officially informed Vasquez by letter that the seized currency was subject to forfeiture and that she had the right to petition for remission or mitigation. A week later, Vasquez filed a petition for remission or mitigation, asserting that the violation was unintentional because she had mistakenly believed she was required to declare only funds that had been obtained in another country and that she had brought the seized funds with her from the United States. On October 20, 1975, the Customs Office of Investigation assigned Special Agent Pompeo to investigate the petition. Within a few days, Agent Pompeo had interviewed the customs inspectors at the airport who were involved in the seizure. After several unsuccessful attempts to contact him, in mid-November Agent Pompeo contacted Vasquez’ attorney to arrange an interview with Vasquez. The attorney was unable to meet at that time, and he desired to be present during the interview with his client. Around this time, Agent Pompeo also opened a criminal file because she suspected Vasquez of smuggling drugs. From November 1975 until April 1976, Agent Pompeo contacted various state, federal, and Canadian law enforcement officials to determine whether the seized currency was part of a narcotics transaction. In January 1976, Vasquez’ attorney inquired about the status of the petition, and was informed it was still under investigation. On March 2, 1976, Agent Pompeo again contacted the attorney regarding an interview with Vasquez, and an interview took place three days later. On April 26, 1976, the attorney again inquired about the status of the petition and requested that it be acted on as soon as possible. Also in April 1976, Agent Pompeo received final reports from the law enforcement agencies. From these reports, Agent Pompeo concluded there was no evidence to support a charge of narcotics violations. In May 1976, Agent Pompeo submitted a report to the United States Attorney, recommending prosecution of Vasquez for the reporting violation. After Agent Pompeo re-interviewed the customs agents and reported her findings, the United States Attorney submitted the case to the grand jury. On June 15, 1976, a grand jury returned an indictment charging Vasquez with the felony of knowingly and willfully making false statements to a United States Customs officer, in violation of 18 U. S. C. § 1001; and with the misdemeanor of knowingly and willfully transporting $8,850 into the United States without filing a report, in violation of 31 U. S. C. §§ 1058 and 1101. The indictment sought forfeiture of the currency as part of the misdemeanor count. In August 1976, Agent Pompeo recommended that disposition of the remission petition be withheld until the currency was no longer needed as evidence at the criminal trial. On December 24, 1976, Vasquez was convicted on the felony count but acquitted on the misdemeanor charge of willfully failing to file a currency report. Four days after the criminal trial was completed, Vasquez' attorney again inquired whether there would be any further delay in acting on the petition. On March 10,1977, the Customs Service informed Vasquez that the claim of forfeiture had been referred to the United States Attorney. Within two weeks, a complaint seeking forfeiture under 31 U. S. C. § 1102 was filed in Federal District Court. In answer to the complaint, Vasquez admitted the factual allegations but asserted as one of several affirmative defenses that the Government’s “dilatory processing” of her petition for remission or mitigation and “dilatory” commencement of the civil forfeiture action violated her right to due process. The District Court, after a 2-day bench trial held in January 1978, determined that the time which had elapsed was reasonable under the circumstances and therefore declared the currency forfeited under 31 U. S. C. § 1102. A divided panel of the Court of Appeals for the Ninth Circuit reversed. 645 F. 2d 836 (1981). Proceeding from the premise that the Government must bring forfeiture actions promptly because seizures infringe upon property rights, the Court of Appeals concluded that the Government’s 18-month delay in filing its forfeiture action was unjustified. The Court of Appeals specifically held that pending administrative or criminal investigations cannot justify the delay when the necessary elements for a forfeiture were established at the time of the seizure and when the claimant seeks a speedy resolution of the claim. The Court of Appeals likewise rejected the Government’s argument that the claimant should be required to show that the delay prejudiced her ability to present a defense to the forfeiture action. As a remedy for the due process violation, the Court of Appeals ordered dismissal of the Government’s forfeiture action. Since other Circuits have determined that pending criminal or administrative investigations and prejudice to the claimant are relevant considerations in determining whether a delay in instituting forfeiture proceedings violates due process, we granted certiorari to resolve the conflict. 455 U. S. 1015 (1982). We reverse. II The due process issue presented here is a narrow one. Vasquez concedes that the Government could constitutionally seize her property without a prior hearing. Nor does Vasquez challenge the sufficiency of the judicial hearing that was eventually held. She argues only that the Government’s delay in filing a civil forfeiture proceeding violated her due process right to a hearing “‘at a meaningful time,”’ Fuentes v. Shevin, 407 U. S. 67, 80 (1972), quoting Armstrong v. Manzo, 380 U. S. 545, 552 (1965). Unlike the situation where due process requires a prior hearing, there is no obvious bright line dictating when a postseizure hearing must occur. Because our prior cases in this area have wrestled with whether due process requires a preseizure hearing, we have not previously determined when a postseizure delay may become so prolonged that the dispossessed property owner has been deprived of a meaningful hearing at a meaningful time. The Government argues that there is no general due process requirement of prompt postseizure filing of a judicial forfeiture action. Rather, the Government urges that the standard for assessing the timeliness of the suit be the same as that employed for due process challenges to delay in instituting criminal prosecutions. As articulated in United States v. Lovasco, 431 U. S. 783 (1977), such claims can prevail only upon a showing that the Government delayed seeking an indictment in a deliberate attempt to gain an unfair tactical advantage over the defendant or in reckless disregard of its probable prejudicial impact upon the defendant’s ability to defend against the charges. The Government argues that in the absence of unfair conduct of this sort, the timeliness of the suit is controlled only by the applicable statute of limitations. Here, Congress has required the Government to institute forfeiture proceedings within five years. 19 U. S. C. §1621 (1976 ed., Supp. V). We reject the Government’s suggestion that Lovasco provides the appropriate test for determining whether the delay violates the due process command. Lovasco recognized that the interests of the suspect and society are better served if, absent bad faith or extreme prejudice to the defendant, the prosecutor is allowed sufficient time to weigh and sift evidence to ensure that an indictment is well founded. While the value of allowing the Government time to pursue its investigation applies to the civil forfeiture situation as well as the criminal proceeding, a major distinction exists. A suspect who has not been indicted retains his liberty; a claimant whose property has been seized, however, has been entirely deprived of the use of the property. A more apt analogy is to a defendant’s right to a speedy trial once an indictment or other formal process has issued. In that situation, the defendant no longer retains his complete liberty. Even if he is allowed to post bail, his liberty is subject to the conditions required by his bail agreement. In Barker v. Wingo, 407 U. S. 514 (1972), we developed a test to determine when Government delay has abridged the right to a speedy trial. The Barker test involves a weighing of four factors: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Id., at 530. Of course, Barker dealt with the Sixth Amendment right to a speedy trial rather than the Fifth Amendment right against deprivation of property without due process of law. Nevertheless, the Fifth Amendment claim here — which challenges only the length of time between the seizure and the initiation of the forfeiture trial — mirrors the concern of undue delay encompassed in the right to a speedy trial. The Barker balancing inquiry provides an appropriate framework for determining whether the delay here violated the due process right to be heard at a meaningful time. We have often repeated the seminal statement from Morrissey v. Brewer, 408 U. S. 471, 481 (1972), that “due process is flexible and calls for such procedural protections as the particular situation demands.” E. g., Schweiker v. McClure, 456 U. S. 188, 200 (1982); Memphis Light, Gas & Water Division v. Craft, 436 U. S. 1, 14-15, n. 15 (1978). The flexible approach of Barker, which “necessarily compels courts to approach speedy trial cases on an ad hoc basis,” 407 U. S., at 530, is thus an appropriate inquiry for determining whether the flexible requirements of due process have been met. As we stressed in Barker, none of these factors is a necessary or sufficient condition for finding unreasonable delay. Rather, these elements are guides in balancing the interests of the claimant and the Government to assess whether the basic due process requirement of fairness has been satisfied in a particular case. III In applying the Barker balancing test to this situation, the overarching factor is the length of the delay. As we said in Barker, the length of the delay “is to some extent a triggering mechanism.” Ibid. Little can be said on when a delay becomes presumptively improper, for the determination necessarily depends on the facts of the particular case. Our inquiry is the constitutional one of due process; we are not establishing a statute of limitations. Obviously, short delays — of perhaps a month or so — need less justification than longer delays. We regard the delay here — some 18 months— as quite significant. Being deprived of this substantial sum of money for a year and a half is undoubtedly a significant burden. Closely related to the length of the delay is the reason the Government assigns to justify the delay. Id., at 531. The Government must be allowed some time to decide whether to institute forfeiture proceedings. The customs official’s decision to seize property is of necessity a hasty one. Both the Government and the claimant have an interest in a rule that allows the Government some time to investigate the situation in order to determine whether the facts entitle the Government to forfeiture so that, if not, the Government may return the money without formal proceedings. Cf. Lovasco, supra, at 791. Normally, investigating officials can make such a determination fairly quickly, so that this reason alone could only rarely justify a lengthy delay. An important justification for delaying the initiation of forfeiture proceedings is to see whether the Secretary’s decision on the petition for remission will obviate the need for judicial proceedings. This delay can favor both the claimant and the Government. Cf. Barker, supra, at 521; Lovasco, supra, at 794-795. In many cases, the Government’s entitlement to the property is clear, and the claimant’s only prospect for reacquiring the property is that the Secretary will favorably exercise his discretion and allow remission or mitigation. If the Government were forced to initiate judicial proceedings without regard to administrative proceedings, the claimant would lose this benefit. Further, administrative proceedings are less formal and expensive than judicial forfeiture proceedings. Given the great percentage of successful petitions, allowing the Government to wait for action on administrative petitions eliminates unnecessary and burdensome court proceedings. Finally, a system whereby the judicial proceeding occurs after administrative action spares litigants and the Government from the burden of simultaneously participating in two forums. The Government takes the extreme position, however, that a pending administrative petition should completely toll the requirement of filing a judicial proceeding. Nothing in the statutory scheme or in our cases supports this argument. A claimant need not waive his right to a prompt judicial hearing simply because he seeks the additional remedy of an administrative petition for mitigation. Unreasonable delay in processing the administrative petition cannot justify prolonged seizure of his property without a judicial hearing. Rather, the pendency of an administrative petition is simply a weighty factor in the flexible balancing inquiry. Pending criminal proceedings present similar justifications for delay in instituting civil forfeiture proceedings. A prior or contemporaneous civil proceeding could substantially hamper the criminal proceeding, which — as here — may often include forfeiture as part of the sentence. A prior civil suit might serve to estop later criminal proceedings and may provide improper opportunities for the claimant to discover the details of a contemplated or pending criminal prosecution. Compare Federal Rule of Civil Procedure 26(b) with Federal Rule of Criminal Procedure 16. In some circumstances, a civil forfeiture proceeding would prejudice the claimant’s ability to raise an inconsistent defense in a contemporaneous criminal proceeding. See, e. g., United States v. U. S. Currency, 626 F. 2d 11 (CA6 1980). Again, however, the pendency of criminal proceedings is only an element to be considered in determining whether delay is unreasonable. Although federal criminal proceedings are generally fairly rapid since the advent of the Speedy Trial Act of 1974, 18 U. S. C. § 3161 et seq. (1976 ed. and Supp. V), the pendency of a trial does not automatically toll the time for instituting a forfeiture proceeding. In this case the Government relies on both a pending petition for mitigation or remission and a pending criminal proceeding to justify the delay in filing civil forfeiture proceedings. During the initial seven months after the seizure the Customs Service was determining whether to grant the petition. This investigation required responses to inquiries to state, federal, and Canadian law enforcement officers. Such an investigation inherently is time consuming, and there is no indication that it was not pursued with diligence. The Customs Service then referred the matter to the United States Attorney, who obtained criminal indictments within two months. Importantly, one count of the indictment sought forfeiture as part of the sentence. If the Government had prevailed, a civil forfeiture would have been rendered unnecessary. There is no evidence in the record that the Government was responsible for the slow pace of the criminal proceedings, which reached a verdict five months later. After the criminal trial ended, the Secretary of the Treasury made a final decision within three months to deny the petition, and the United States Attorney promptly filed a civil forfeiture proceeding. We are impressed by the assessment made by the District Court that the Goverment had acted with all due speed. Indeed, in an oral colloquy during trial the District Judge commented: “I have been anxious to see in this case whether there has been a lot of dilitory [sic] conduct that the government has really not done what it should do in order to push this thing with all reasonable speed, and, frankly, I don’t see any point in which the government has been lax. “If I had found such, and I found it an unreasonable length of time, I would have been happy to so hold .... “But, in view of the evidence here, I just cannot see any way in which this Court can say that the government has not pursued their claim in all reasonable diligence.” App. 77. In sum, the Government’s diligent pursuit of pending administrative and criminal proceedings indicates strongly that the reasons for its delay in filing a civil forfeiture proceeding were substantial. The third element to be considered in the due process balance is the claimant’s assertion of the right to a judicial hearing. A claimant is able to trigger rapid filing of a forfeiture action if he desires it. First, the claimant can file an equitable action seeking an order compelling the filing of the forfeiture action or return of the seized property. See Slocum, v. Mayberry, 2 Wheat. 1, 10 (1817) (Marshall, C. J.). Less formally, the claimant could simply request that the Customs Service refer the matter to the United States Attorney. If the claimant believes the initial seizure was improper, he could file a motion under Federal Rule of Criminal Procedure 41(e) for a return of the seized property. Yasquez did none of these things and only occasionally inquired about the result of the petition for mitigation or remission and asked that the Secretary reach a decision promptly. The failure to use these remedies can be taken as some indication that Yasquez did not desire an early judicial hearing. The final element is whether the claimant has been prejudiced by the delay. The primary inquiry here is whether the delay has hampered the claimant in presenting a defense on the merits, through, for example, the loss of witnesses or other important evidence. Such prejudice could be a weighty factor indicating that the delay was unreasonable. Here, Vasquez has never alleged or shown that the delay affected her ability to defend against the impropriety of the forfeiture on the merits. On the contrary, Vasquez conceded that the elements necessary for a forfeiture under § 1102(a) were present in her case. IV In this case, the balance of factors indicates that the Government’s delay in instituting civil forfeiture proceedings was reasonable. Although the 18-month delay was a substantial period of time, it was justified by the Government’s diligent efforts in processing the petition for mitigation or remission and in pursuing related criminal proceedings. Vasquez never indicated that she desired early commencement of a civil forfeiture proceeding, and she has not asserted or shown that the delay prejudiced her ability to defend against the forfeiture. Therefore, the claimant was not denied due process of law. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. In addition to the general remission provisions of Title IV, Title II of the Bank Secrecy Act contains its own remission provision, 31 U. S. C. § 1104: “The Secretary may in his discretion remit any forfeiture or penalty under this subchapter in whole or in part upon such terms and conditions as he deems reasonable and just.” At the time of the seizure in this case, a customs officer could institute nonjudicial, summary forfeiture proceedings if the value of the seized merchandise was not more than $2,500. See 19 U. S. C. §§ 1607-1609. Congress has since raised this limit to $10,000. 19 U. S. C. § 1607 (1976 ed., Supp. V). Even for a seizure of property appraised at less than $10,000, the claimant has a right to a judicial determination upon posting a $250 bond to cover costs. 19 U. S. C. § 1608. At the time of the seizure of the currency from Vasquez, 19 U. S. C. § 1603 contained no requirement of a prompt report of a seizure by the Customs Service to the United States Attorney for purposes of instituting forfeiture proceedings. As amended in 1978, § 1603 now requires the appropriate customs officer “to report promptly” to the United States Attorney whenever legal proceedings “in connection with such seizure or discovery are required.” 19 U. S. C. § 1603 (1976 ed., Supp. V). On September 11, 1975, the day after the seizure, Vasquez’ counsel had written an informal letter to the District Director of Customs, explaining why she had not declared the money. This inquiry was relevant to the reporting violation. A currency reporting violation is normally a misdemeanor, but a reporting violation committed in furtherance of any other federal offense is a felony. Compare 31 U. S. C. § 1058 with 31 U. S. C. § 1059. The conviction on the felony count was subsequently reversed because court files were left in the jury room during deliberations. United States v. Vasquez, 597 F. 2d 192 (CA9 1979). On March 28, 1977, the Customs Service officially notified Vasquez that her petition had been denied. Because we find no violation of due process, we do not decide whether dismissal of the forfeiture action with prejudice would be an appropriate remedy for undue delay. E. g., White v. Acree, 594 F. 2d 1385 (CA10 1979). E. g., United States v. Thirty-Six Thousand One Hundred & Twenty-Five Dollars in U. S. Currency, 642 F. 2d 1211 (CA5), cert. denied, 454 U. S. 835 (1981) (aff’g 510 F. Supp. 303 (ED La. 1980)). E. g., United States v. Various Pieces of Semiconductor Manufacturing Equipment, 649 F. 2d 606 (CA8 1981); United States v. One 1976 Mercedes 450 SLC, 667 F. 2d 1171 (CA5 1982). The general rule, of course, is that absent an “extraordinary situation” a party cannot invoke the power of the state to seize a person’s property without a prior judicial determination that the seizure is justified. Boddie v. Connecticut, 401 U. S. 371, 378-379 (1971). See also North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975); Fuentes v. Shevin, 407 U. S. 67 (1972); Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); cf. Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974). But we have previously held that such an extraordinary situation exists when the government seizes items subject to forfeiture. In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974), the Court upheld a Puerto Rico statute modeled after a federal forfeiture statute, 21 U. S. C. § 881(a), which allowed Puerto Rican authorities to seize, without prior notice or hearing, a yacht suspected of importing marihuana. Pearson Yacht clearly indicates that due process does not require federal customs officials to conduct a hearing before seizing items subject to forfeiture. Such a requirement would make customs processing entirely unworkable. The government interests found decisive in Pearson Yacht are equally present in this situation: the seizure serves important governmental purposes; a pre-seizure notice might frustrate the statutory purpose; and the seizure was made by government officials rather than self-motivated private parties. In United States v. Thirty-seven Photographs, 402 U. S. 363 (1971), we construed a statute allowing customs officials to seize obscene material as requiring a postseizure filing within 14 days and completion of the hearing in an additional 60 days. That case interpreted the statute so as to avoid possible First Amendment problems of prior restraint. The case did not involve, and thus we had no occasion to address, the time restraints imposed by the Due Process Clause. Even if we'were inclined to interpret the statutes here in such a way as to avoid any due process question, it would be impossible to read into the statutory scheme, as we did in Thirty-seven Photographs, a short statute of limitations, since 19 U. S. C. § 1621 (1976 ed., Supp. V) expressly allows the Government to bring a civil forfeiture proceeding within five years. The deprivation in Barker — loss of liberty — may well be more grievous than the deprivation of one’s use of property at issue here. Thus, the balance of the interests, which depends so heavily on the context of the particular situation, may differ from a situation involving the right to a speedy trial. By regulation, the Secretary is not allowed to process any petition for remission or mitigation while a civil forfeiture proceeding is pending. 19 CFR § 171.2(a) (1982). Under the 1978 revisions to 19 CFR § 162.31(a), the Customs Service is now required to warn claimants that unless they agree to defer judicial forfeiture proceedings until completion of the administrative process, the case will be referred promptly to the United States Attorney for institution of judicial proceedings, or summary forfeiture proceedings will be begun. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Douglas delivered the opinion of the Court. This is a motion by Arkansas to file a complaint against Texas and invoke our original jurisdiction granted by Art. Ill, § 2, of the Constitution. The complaint alleges that the University of Arkansas, acting through its Board of Trustees, and the William Buchanan Foundation, a corporation organized under the laws of Texas, entered into a contract whereby the Foundation agreed to contribute a sum of $500,000 to the construction of a one-hundred-bed pediatric floor in a new hospital in the Arkansas State Medical Center. The allegations are that, though the University of Arkansas and the Foundation are ready, willing, and able to perform, the State of Texas, acting through her Attorney General, has filed suit in the Texas courts to enjoin the Foundation from performing the contract on the ground that under Texas law the trust funds of the Foundation must be expended for the benefit of Texas residents. The complaint further alleges that the University of Arkansas is an official instrumentality of Arkansas, that in reliance on the agreement with the Foundation it let contracts for the construction of the hospital, proceeded with construction to the sixth floor, and is without funds to proceed further unless Texas is enjoined from interference with the contract. We issued a rule to show cause why leave to file the complaint should not be granted, 345 U. S. 954. Texas has made return to the rule and the case has been argued. Texas first argues that the William Buchanan Foundation is an indispensable party to the suit. We do not agree. The theory of the complaint is that Texas is interfering without legal justification with Arkansas’ contract with a third person. At least since Lumley v. Gye, 2 El. & Bl. 216, 118 Eng. Rep. 749 (Q. B. 1853), a cause of action based on that tortious conduct has been recognized. See Angle v. Chicago, St. P., M. & O. R. Co., 151 U. S. 1, 13-15; Bitterman v. Louisville & N. R. Co., 207 U. S. 205, 222-223. However appropriate it might be to join the Foundation as a defendant in the case (see Texas v. Florida, 306 U. S. 398, 405), the controversy is between Arkansas and Texas — the issue being whether Texas is interfering unlawfully with Arkansas’ contract. The contention that the controversy is between two States is challenged on the ground that the injured party is the University of Arkansas, which does not stand in the shoes of the State. Arkansas must, of course, represent an interest of her own and not merely that of her citizens or corporations. Oklahoma v. Cook, 304 U. S. 387. But as we read Arkansas law the University of Arkansas is an official state instrumentality; and we conclude that for purposes of our original jurisdiction any injury under the contract to the University is an injury to Arkansas. The University, which was created by the Arkansas legislature, is governed by a Board of Trustees appointed by the Governor with consent of the Senate. The Board, to be sure, is “a body politic and corporate” with power to issue bonds which do not pledge the credit of the State. But the Board must report all of its expenditures to the legislature, and the State owns all the property used by the University. The Board of Trustees is denominated “a public agency” of the State, the University is referred to as “an instrument of the state in the performance of a governmental work,” and a suit against the University is a suit against the State. In determining whether the interest being litigated is an appropriate one for the exercise of our original jurisdiction, we of course look behind and beyond the legal form in which the claim of the State is pressed. We determine whether in substance the claim is that of the State, whether the State is indeed the real party in interest. Oklahoma v. Cook, supra, pp. 392-396. Arkansas is in our view the real party in interest. The University of Arkansas is her agency in the educational field — a branch or department of the State. The central question which the case tenders is whether the William Buchanan Foundation has authority to spend its funds for furtherance of this Arkansas project. That is necessarily a question of Texas law, for the Foundation gets its existence and its powers from Texas. Texas courts speak with authority on those issues. Were we to undertake to resolve the questions, we might find ourselves in conflict with the courts that have the final say. Moreover litigation is now pending in the Texas courts which will authoritatively determine what the Texas law is. We therefore follow the course we have taken in analogous situations (cf. Thompson v. Magnolia Co., 309 U. S. 478, 483; Herb v. Pitcairn, 324 U. S. 117) and continue the present motion until the litigation in the Texas courts has been concluded. If that litigation resolves the whole controversy, leaving no federal questions, there will be no occasion for us to proceed further. It is so ordered. See Ark. Acts 1871, No. 44; Ark. Stat., 1947, §80-2801, Compiler’s Notes. Ark. Stat., 1947, § 80-2802. Ark. Stat., 1947, § 80-2804. Jacobs v. Sharp, 211 Ark. 865, 202 S. W. 2d 964. Ark. Stat., 1947, § 80-2817. Id., §§80-2849 if.; 80-2905; 80-3311. Jacobs v. Sharp, 211 Ark., at 866, 202 S. W. 2d 964. Vincenheller v. Reagan, 69 Ark. 460, 474, 64 S. W. 278, 284. And see Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595. See Allen Engineering Co. v. Kays, 106 Ark. 174, 152 S. W. 992. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Black delivered the opinion of the Court In 1962 the city of Jackson, Mississippi, was maintaining five public parks along with swimming pools, golf links, and other facilities for use by the public on a racially segregated basis. Four of the swimming pools were used by whites only and one by Negroes only. Plaintiffs brought an action in the United States District Court seeking a declaratory judgment that this state-enforced segregation of the races was a violation of the Thirteenth and Fourteenth Amendments, and asking an injunction to forbid such practices. After hearings the District Court entered a judgment declaring that enforced segregation denied equal protection of the laws but it declined to issue an injunction. The Court of Appeals affirmed, and we denied certiorari. The city proceeded . to desegregate its public parks, auditoriums, golf courses, and the city zoo. However, the city council decided not to try to operate the public swimming pools on a desegregated basis. ■ Acting in its legislative capacity, the council surrendered its lease on one pool and closed four which the city owned. A number of Negro citizens of Jackson then filed this suit to force the city to reopen the pools and operate them on a desegregated basis. The District Court found that the closing was justified to preserve peace and order and because the pools could not be operated economically on an integrated basis. It held the city’s action did not deny black citizens equal protection of the laws. The Court of Appeals sitting en banc affirmed, six out of 13 judges dissenting. That court rejected the contention that since the pools had been closed either in whole or in part to avoid desegregation the city council’s action was a denial of equal protection of the laws. We granted certiorari to decide that question. We affirm.. I Petitioners rely chiefly on the first section of the Fourteenth Amendment which forbids any State to “deny to any person within its jurisdiction the equal protection of the laws.” There can be no doubt that a major purpose of this amendment was to safeguard Negroes against discriminatory state laws — state Jaws that fail to give Negroes protection equal to that afforded white people. History shows that' the achievement of equality for Negroes was the urgent purpose not only for passage of the Fourteenth Amendment but .for the Thirteenth and Fifteenth Amendments as well. See, e. g., Slaughter-House Cases, 16 Wall. 36, 71-72 (1873). Thus the Equal Protection Clause was principally designed- to protect Negroes against discriminatory action by the States. Here there has unquestionably been “state action” because the official local government legislature, the city council, has closed the public swimming pools of Jackson. The question, however, is whether this closing of the pools is state action that denies “the equal protection of the laws” to Negroes. It should be noted first that neither the Fourteenth Amendment nor any Act of Congress purports to impose an affirmative duty on a State to begin to opejate or to continue to operate swimming pools. Furthermore, this is -not a- case where whites are permitted to use public' facilities while blacks are denied access. It is not a case where a city is maintaining different sets of facilities for blacks and-whites and forcing the races to remain separate in recreational or educational activities. See, e. g., Watson v. City of Memphis, 373 U. S. 526 (1963); Brown v. Board of Education, 347 U. S. 483 (1954). Unless, therefore, as petitioners urge, certain past cases require us to hold that closing the pools to all denied equal protection to Negroes, we must agree with the courts below and affirm.- II - Although petitioners cite a number of our previous cases, the only two which even plausibly support their, argument are Griffin v. County School Board of Prince Edward County, 377 U. S. 218 (1964), and Reitman v. Mulkey, 387 U. S. 369 (1967). For the reasons that " follow, however, neither case leads us to reverse the judgment here. A. In Griffin the public schools of Prince .Edward County, Virginia, were closed under, authority of state and county law, and so-called “private schools” were set up in their place' to avoid a court deségregation order. At the same time, public schools in other counties in Virginia remained open. In Prince Edward County the “private schools” were open to whites only and these schools were in fact run by a practical partnership between State and county, designed to preserve segregated education. We pointed out in Griffin the many facets of state involvement in the running of the “private schools.” The State General Assembly had made available grants of $150 per child to make the program possible. . This was supplemented by a county grant program of $100 per child and county property tax credits for citizens contributing to the “private schools.” Under those circumstances we held that the closing of public schools in just one county while the State helped finance “private schools” was a scheme to perpetuate segregar tion in education which constituted a denial of equal protection of the laws. Thus the Griffin case simply treated the school program for what it was — an operation of Prince Edward County schools under a thinly disguised “private” school system actually planned and carried out by the State and the county to maintain segregated education with public funds. That case can- give no comfort to petitioners here. This record supports no intimation that Jackson has not completely and finally ceased running swimming pools for all time. Unlike Prince Edward County, Jackson has not pretended to close public pools only to run them under a “private” label. It is true that the Leavell Woods pool, previously leased by the city from the YMCA,’ is now run by that organization and appears to be open only to whites. And according to oral argument, another pool owned by the city before 1963 is now owned and operated by Jackson State College, a predominantly black institution, for college students and their guests. But unlike the “private schools” in Prince Edward County there is nothing here to show the city is directly or indirectly involved in the funding or operation of either pool. If the time ever comes when Jackson attempts to run segregated public pools either directly or. indirectly, or participates in a subterfuge whereby pools are nominally run by “private parties” blit actually by the city, relief will be available in the federal courts. B. Petitioners also claim that Jackson’s closing of the public pools authorizes or encourages private pool owners to discriminate on account of race and that such “encouragement” is prohibited by Reitman v. Mulkey, supra. In Reitman, California had repealed two laws relating to racial discrimination in the sale of housing by passing a constitutional amendment establishing the right of private persons to discriminate on racial grounds in real estate transactions. This Court there accépted what it designated as the holding of the Supreme Court of California, namely that the constitutional amendment was an official authorization of racial discrimination which significantly involved the State in the discriminatory acts of private parties. 387 U. S., at 376-378, 380-381. In the first place there are no findings here about any state “encouragement” of discrimination, and it is not clear that any such theory was ever considered by the District Court. The implication of petitioners’ argument appears to be that the fact the city turned over to the YMCA a pool it had previously leased is sufficient to show automatically that the city has conspired with the YMCA to deprive Negroes of the opportunity to swim in integrated pools. Possibly in a case where the city and the YMCA were both parties, a court could find that the city engaged in a subterfuge, and that liability could be fastened on it as an active participant in a conspiracy with the YMCA. We need not speculate upon such a possibility, for there is no such finding here, and it does not appear from this record that there was evidence to support such a.finding. Reitman v. Mulkey was based on a theory that the evidence was sufficient to show the State, was abetting a refusal to rent apartments .on racial grounds. On this record, Reitman offers no more support to petitioners than does Griffin. Ill Petitioners have also argued that respondents’ action violates the Equal Protection Clause because the decision to close the pools was motivated by a desire to avoid integration of the races. . But no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the" men who voted for it. The pitfalls of such analysis were set forth clearly in the landmark opinion of Mr. Chief Justice Marshall in Fletcher v. Peck, 6 Cranch 87, 130 (1810), where the Court declined to set aside the Georgia Legislature’s. sale of lands on the theory that its members were corruptly motivated in passing the bill. A similar contention that illicit motivation should lead to a finding of unconstitutionality was advanced in United States v. O’Brien, 391 U. S. 367, 383 (1968), where this Court rejected the argument that a defendant could not be punished for burning his draft card because Congress had allegedly passed the statute to stifle dissent. That opinion explained well the hazards of declaring a law unconstitutional because of the motivations of its sponsors. First, it is extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment. Id., at 383, 384. Here, for example, petitioners have argued that the Jackson pools were closed because of ideological opposition to racial integration in swimming pools. Some evidence in the record appears to support this argument. On the other hand the courts below found that the pools were closed because the city council felt they could not be operated safely and economically on an integrated basis. There is substantial evidence in the record to support this conclusion. It is difficult or impossible for any court to determine the “sole” or “dominant” motivation behind the choices of a group of legislators. Furthermore, there is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters; If the law is struck down for this reason, rather than because of its facial content, or effect, it would presumably be valid as soon as the legislature or relevant governing body re-passed it for different reasons. It is true there is language in some, of our cases interpreting the Fourteenth and. Fifteenth Amendments which may suggest that the motive or purpose behind a law is relevant to its constitutionality. Griffin v. County School Board, supra; Gomillion v. Lightfoot, 364 U. S. 339, 347 (1960). But the focus in those cases was on the actual effect of the enactments, not upon the motivation which led the States to behave as they did. In Griffin, as discussed supra, the State was in fact perpetuating a segregated public school system by financing segregated “private” academies. And in Gomillion the Alabama Legislature’s gerrymander of the boundaries of Tuskegee excluded virtually all Negroes from voting in town elections. Here the record indicates only that Jackson once ran segregated public swimming pools and that no public pools are now maintained by the city. Moreover, there is no evidence in this record to show that the city is now covertly aiding the maintenance and operation of pools which are private in name only. It shows no state action affecting blacks differently from whites. Petitioners have argued strenuously that a city’s possible motivations to ensure safety and save money cannot validate an otherwise impermissible state action. This proposition is, of course, true. Citizens may not be compelled to forgo their constitutional rights because officials fear public hostility or desire to save money. Buchanan v. Warley, 245 U. S. 60 (1917); Cooper v. Aaron, 358 U. S. 1 (1958); Watson v. City of Memphis, 373 U. S. 526 (1963). But the issue here is whether black citizens in Jackson are being denied their' constitutional rights when the city has closed the public pools to black and white alike. Nothing in the history or the language of the Fourteenth Amendment nor in any of oúr prior cases persuades us that the closing of the Jackson swimming pools to all its citizens constitutes a denial of “the equal protection of the laws.” IV Finally, some faint and unpersuasive argument has been made by petitioners that the closing of the pools violated the Thirteenth Amendment which freed the Negroes from slavery. The argument runs this way: The first Mr. Justice Harlan’s dissent in Plessy v. Ferguson, 163 U. S. 537, 552 (1896), argued strongly that the purpose of the. Thirteenth Amendment was not only to outlaw slavery but also all of its “badges, and incidents.” This broad reading of the amendment was affirmed in Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968). The denial of the right of Negroes to swim in pools with white people is said to be a “badge or incident” of slavery. Consequently, the argument seems to run, this Court should declare that the city’s closing of the pools to keep the two races from swimming together violates the Thirteenth Amendment. To reach that result from the Thirteenth Amendment would severely stretch its short simple words and do violence to,its history. .Establishing this Court’s authority under the Thirteenth Amendment to declare new laws to govern the thousands of towns and cities of the country would grant it a lawmaking power far beyond the imagination of the amendment’s authors. Finally,, although the Thirteenth Amendment is a skimpy collection of words to allow this Court to legislate new laws to control the operation of swimming pools throüghout the length and breadth of this Nation, the. Amendment does contain other words that we held in Jones v. Alfred H. Mayer Co. could empower Congress to outlaw “badges of slavery.” The last sentence of the Amendment reads: “Congress shall have power to enforce this'article >by appropriate legislation.” But Congress has passed no law under this power to regulate a city’s opening or closing of swimming pools or other recreational facilities. It has not been so many years since it was first deemed proper and lawful for cities to tax their citizens to build and operate swimming pools for the public. Probably few persons, prior to this case, would have imagined that cities could be forced by five lifetime judges to construct or refurbish swimming pools which they choose not to operate for any reason, sound or unsound. Should citizens of Jackson or any other city be able to establish in court that public, tax-supported swimming pools are being denied to one group because of color and supplied to another, they will be entitled to relief. But that is not the case here. The judgment is Affirmed. Clark v. Thompson, 206 F. Supp. 539 (SD Miss. 1962). 313 F. 2d 637 (CA5), cert. denied, 375 U. S. 951 (1963). The court’s opinion is not officially reported. 419 F. 2d 1222 (CA5 1969). My Brother White’s dissent suggests that the. pool closing operates unequally on white and blacks because, “The action of the city in this case interposes a major deterrent to seeking judicial or executive help in eliminating racial restrictions on the use of public facilities.” Post, at 269. It is difficult to see the force of this argument since Jackson has desegregated its public parks, auditoriums, golf courses, city zoo, and the record indicates it no.w maintains no segregated public facilities. Bush v. Orleans Parish School Board, 187 F. Supp. 42 (ED La. 1960), aff’d, 365 U. S. 569 (1961), does not lead us to reverse the judgment here. -In Bush we wrote no opinion but'merely affirmed a lower federal court judgment that' held unconstitutional _ certain laws designed to perpetuate segregation in the Louisiana public schools. One law held unconstitutional by the lower court empowered the State Governor to close any school ordered to integrate; another empowered him to close all state schools if one were integrated. Of course that case dicl not involve swimming pools but rather public schools, an enterprise we have described as “perhaps the most important function of state and local governments.” Brown v. Board of Education, supra, at 493. More important, the laws struck down in Bush were part of an elaborate package of legislation ' through which Louisiana sought to maintain public education on a segregated basis, not to end public -education. See ajso Bush v. Orleans Parish School Board, 188 F. Supp. 916 (ED La. 1960). Of ' course there was no serious problem of probing the motives of a legislature in Bush because most of the Louisiana statutes explicitly stated they were designed to forestall integrated schools. 187 F. Supp., at 45. Tr. of Oral Arg. 31-32. There is no question before us here whether the black citizens of Jackson may. be entitled to utilize the swimming facilities of Leavell Woods pool. Nothing on the present record indicates state involvement in the running of that pool. The YMCA, which apparently now operates the pool, was not joined as a party and thus, of course, no judgment could be entered against it. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Scalia delivered the opinion of the Court. At about 7 a.m. on June 10, 1988, four United States marshals arrived at Thomas Braxton’s door with a warrant for his arrest. One of the marshals, Deputy Jenkins, knocked. There was no answer, though they could hear someone inside. Thirty minutes later the officers returned with a key to Braxton’s apartment. Jenkins knocked again; and again received no answer. He unlocked the door, only to find it secured with a chain lock as well — which he broke by kicking the door open. “[Contemporaneous with the door opening, a gunshot was fired through the door opening. The gunshot lodged in the front door just above the doorknob. That’s the outside of the front door.” App. 17. The door slammed shut, and the officers withdrew. A moment later, Jenkins again kicked the door open. Another shot was fired, this too lodging in the front of the door, about five feet from the floor. The officers again withdrew, and the area was barricaded. Braxton, who had fired the shots, eventually gave himself up, and was charged in a three-count indictment with (1) an attempt to kill a deputy United States marshal (18 U. S. C. § 1114), (2) assault on a deputy marshal (§ 111), and (3) the use of a firearm during a crime of violence (§ 924(c)). These were the facts as presented by the Government during the course of a plea hearing, pursuant to Rule 11(f) of the Federal Rules of Criminal Procedure, at which Braxton pleaded guilty to the assault and firearm counts of the indictment, and not guilty to the attempt to kill count. The pleas were not made pursuant to any plea agreement, and the Government did not dismiss the attempt to kill count at the plea hearing. The purpose of the hearing was simply to provide a factual basis for accepting Braxton's guilty pleas. Braxton agreed with the facts as the Government characterized them, with two small caveats, neither of which is significant for purposes of this case. Subject to those "modifications," Braxton agreed that "what the Government say[s] that it could prove [happened] happened." App. 19. With this factual basis before it, the District Court accepted Braxton's guilty pleas, specifically noting that "there is no plea agreement." Ibid. Two months later, Braxton was sentenced. Relying upon a proviso in § lB 1.2(a) of the United States Sentencing Commission Guidelines Manual (1990), and over Braxton's objections, the District Court in essence sentenced Braxton as though he had been convicted of attempted killing, the only charge to which Braxton had not confessed guilt. The Court of Appeals upheld the sentence, 903 F. 2d 292 (CA4 1990), and we granted certiorari. 498 U. 5. 966 (1990). I Ordinarily, a court pronouncing sentence under the Guidelines applies the "offense guideline section . . . most applicable to the offense of conviction." § 1B1.2(a). There is, however, one "limited" exception to this general rule, § lB 1.2, comment., n. 1, consisting of the following proviso to § 1B1.2(a): "Provided, however, in the case of conviction by a plea of guilty or nob contendere containing a stipulation that specifically establishes a more serious offense than the offense of conviction, [the court shall apply the guideline in such chapter] most applicable to the stipulated offense." Braxton's conviction was no doubt by a "plea of guilty." This case presents the ciuestions whether it was also a convic-n tion by a plea (1) “containing a stipulation” that (2) “specifically establishes” that Braxton attempted to kill the marshals who had been sent to arrest him. The Courts of Appeals have divided on the meaning of the first phrase, “containing a stipulation,” and Braxton argues that however that phrase is read, the court below misapplied the second, “specifically establishes a more serious offense.” We consider each contention in turn. A As the District Court noted, there was no plea agreement in this case. Braxton argues that his plea did not “contai[nJ” a stipulation because by “containing a stipulation,” the Guidelines mean a stipulation that is part of a formal plea agreement. Some Circuits to consider the question have agreed with that interpretation, believing that the “stipulation” must be part of the “quid pro quo” for the Government’s agreement not to charge a higher offense. See, e. g., United States v. McCall, 915 F. 2d 811, 816, n. 4 (CA2 1990); United States v. Warters, 885 F. 2d 1266, 1273, n. 5 (CA5 1989). But as the Government points out, § IB 1.2 does not by its terms limit its application to stipulations contained in plea agreements; the language speaks only of “plea[s] . . . containing a stipulation.” Since, the Government argues, any formal assent to a set of facts constitutes a stipulation, Braxton’s guilty plea “contain[ed] a stipulation” upon which the court could rely in setting his base-offense level. That was the approach of the court below. A principal purpose for which we use our certiorari jurisdiction, and the reason we granted certiorari in the present case, is to resolve conflicts among the United States courts of appeals and state courts concerning the meaning of provisions of federal law. See this Court’s Rule 10.1. With respect to federal law apart from the Constitution, we are not the sole body that could eliminate such conflicts, at least as far as their continuation into the future is concerned. Obviously, Congress itself can eliminate a conflict concerning a statutory provision by making a clarifying amendment to the statute, and agencies can do the same with respect to regulations. Ordinarily, however, we regard the task as initially and primarily ours. Events that have transpired since our grant of certiorari in the present case have focused our attention on the fact that this may not be Congress’ intent with respect to the Sentencing Guidelines. After we had granted Braxton’s petition for certiorari, the Commission requested public comment on whether § IB 1.2(a) should be “amended to provide expressly that such a stipulation must be as part of a formal plea agreement,” 56 Fed. Reg. 1891 (1991), which is the precise question raised by the first part of Braxton’s petition here. The Commission took this action pursuant to its statutory duty “periodically [to] review and revise” the Guidelines. 28 U. S. C. §994(o). The Guidelines are of course implemented by the courts, so in charging the Commission “periodically [to] review and revise” the Guidelines, Congress necessarily contemplated that the Commission would periodically review the work of the courts, and would make whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest. This congressional expectation alone might induce us to be more restrained and circumspect in using our certiorari power as the primary means of resolving such conflicts; but there is even further indication that we ought to adopt that course. In addition to the duty to review and revise the Guidelines, Congress has granted the Commission the unusual explicit power to decide whether and to what extent its amendments reducing sentences will be given retroactive effect, 28 U. S. C. §994(u). This power has been implemented in USSG § 1B1.10, which sets forth the amendments that justify sentence reduction. We choose not to resolve the first question presented in the current case, because the Commission has already undertaken a proceeding that will eliminate circuit conflict over the meaning of § 1B1.2, and because the specific controversy before us can be decided on other grounds, as set forth below. B Unlike the first question discussed above, which presents a general issue of law on which the Circuits have fallen into disagreement, Braxton’s second question is closely tied to the facts of the present case. For the proviso in § lB1.2(a) to apply, there must be not simply a stipulation, but a stipulation that “specifically establishes” a more serious offense. Thus, even assuming that Braxton’s agreement to facts constituted a “stipulation” for purposes of § lB1.2(a), unless it “specifically established” an attempt to kill under 18 U. S. C. § 1114, the sentence based upon the Guideline for that offense cannot stand. For Braxton to be guilty of an attempted killing under 18 U. S. C. § 1114, he must have taken a substantial step towards that crime, and must also have had the requisite mens rea. See E. Devitt, C. Blackmar, & M. Wolff, Federal Jury Practice and Instructions § 14.21 (1990 Supp.). A stipulation by Braxton that he shot “at a marshal,” without any qualification about his intent, would suffice to establish a substantial step towards the crime, and perhaps the necessary intent. The stipulation here, however, was not that Braxton shot “at a marshal.” As the Government appears to concede, Brief for United States 19, n. 10, citing United States v. Guerrero, 863 F. 2d 245, 248 (CA2 1988), the only stipulation relevant to our inquiry is (at most) that which occurred at the Rule 11(f) hearing, since § IB 1.2 refers not to a stipulation in isolation, but to “a plea . . . containing a stipulation.” (Emphasis added.) All Braxton agreed to at the Rule 11(f) hearing was that he shot “through the door opening [and that] [t]he gunshot lodged in the front door just above the doorknob. That [is] the outside of the front door.” App. 17. The Court of Appeals affirmed the District Court’s judgment that this “specifically established” a violation of 18 U. S. C. § 1114, primarily because it believed that at least the District Court was not “clearly erroneous” in so concluding. That is, of course, the standard applied, when reviewing a sentence, to findings of fact. 18 U. S. C. § 3742(e). Determination of the meaning and effect of a stipulation, however, is not a factual finding: We review that just as we would review a determination of meaning and effect of a contract, or consent decree, or proffer for summary judgment. See, e. g., Washington Hospital v. White, 889 F. 2d 1294, 1299 (CA3 1989); Frost v. Davis, 346 F. 2d 82, 83 (CA5 1965). The question, therefore, is not whether there is any reasonable reading of the stipulation that supports the District Court’s determination, but whether the District Court was right. We think it was not. The stipulation does not say that Braxton shot at the marshals; any such conclusion is an inference at best, and an inference from ambiguous facts. To give just one example of the ambiguity: The Government proffered (and Braxton agreed) that Braxton shot “through the door opening,” and that the bullet lodged in the “front [of the] door.” App. 17. It is difficult to understand how both of these facts could possibly be true, at least on an ordinary understanding of what constitutes a “door opening.” One does not shoot through a door opening and hit the door, any more than one walks through a door opening and bumps into the door. But in any case, if one accepts the stipulation that both shots lodged in the front of the (inward-opening) door, it would be unreasonable to conclude that Braxton was shooting at the marshals unless it was also stipulated that the marshals had entered the room. That was not stipulated, and does not appear to have been the fact. But even if one could properly conclude that the stipulation “specifically established” that Braxton had shot “at the marshals,” it would also have to have established that he did so with the intent of killing them. Not only is there nothing in the stipulation from which that could even be inferred, but the statements of Braxton’s attorney at the hearing flatly deny it. “Of course, there is lurking in the background the allegation of an attempted murder. You can gather from Mr. Braxton’s position, and probably from [the Government’s] statement of facts, that Mr. Braxton admits he assaulted someone and used a handgun, but, obviously, is not admitting he attempted to specifically murder anyone.” Id., at 22. Braxton claims to have intended to frighten the marshals, not shoot them, and that claim is certainly consistent with the stipulation before us. We of course do not know what actually happened that morning in June, but that is not the question before us. The only issue for resolution is whether a stipulation that at best supports two reasonable readings — one that Braxton shot across the room at the marshals when they entered, and one that he shot across the room before they entered to frighten them off — is a stipulation that “specifically establishes” that Braxton attempted to murder one of the marshals. It does not. The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. Since the statute does not specify the elements of “attempt to kill,” they are those required for an “attempt” at common law, see Morissette v. United States, 342 U. S. 246, 263 (1952), which include a specific intent to commit the unlawful act. “Although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill.” 4 C. Torcia, Wharton’s Criminal Law §743, p. 572 (14th ed. 1981). See also R. Perkins & R. Boyce, Criminal Law 637 (3d ed. 1982); W. LaFave & A. Scott, Criminal Law 428-429 (1972). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Chief Justice Rehnquist delivered the opinion of the Court. The Protection of Children Against Sexual Exploitation Act of 1977, as amended, prohibits the interstate transportation, shipping, receipt, distribution, or reproduction of visual depictions of minors engaged in sexually explicit conduct. 18 U. S. C. § 2252. The Court of Appeals for the Ninth Circuit reversed the conviction of respondents for violation of this Act. It held that the Act did not require that the defendant know that one of the performers was a minor, and that it was therefore facially unconstitutional. We conclude that the Act is properly read to include such a requirement. Rubin Gottesman owned and operated X-Citement Video, Inc. Undercover police posed as pornography retailers and targeted X-Citement Video for investigation. During the course of the sting operation, the media exposed Traci Lords for her roles in pornographic films while under the age of 18. Police Officer Steven Takeshita expressed an interest in obtaining Traci Lords tapes. Gottesman complied, selling Takeshita 49 videotapes featuring Lords before her 18th birthday. Two months later, Gottesman shipped eight tapes of the underage Traci Lords to Takeshita in Hawaii. These two transactions formed the basis for a federal indictment under the child pornography statute. The indictment charged respondents with one count each of violating 18 U. S. C. §§ 2252(a)(1) and (a)(2), along with one count of conspiracy to do the same under 18 U. S. C. § 371. Evidence at trial suggested that Gottesman had full awareness of Lords’ underage performances. United States v. Gottes-man, No. CR 88-295KN, Findings of Fact ¶ 7 (CD Cal., Sept. 20, 1989), App. to Pet. for Cert. 39a (“Defendants knew that Traci Lords was underage when she made the films defendant’s [sic] transported or shipped in interstate commerce”). The District Court convicted respondents of all three counts. On appeal, Gottesman argued, inter alia, that the Act was facially unconstitutional because it lacked a necessary scien-ter requirement and was unconstitutional as applied because the tapes at issue were not child pornography. The Ninth Circuit remanded to the District Court for reconsideration in light of United States v. Thomas, 893 F. 2d 1066 (CA9), cert. denied, 498 U. S. 826 (1990). In that case, the Ninth Circuit had held §2252 did not contain a scienter requirement, but had not reached the constitutional questions. On remand, the District Court refused to set aside the judgment of conviction. On appeal for the second time, Gottesman reiterated his constitutional arguments. This time, the court reached the merits of his claims and, by a divided vote, found § 2252 facially unconstitutional. The court first held that 18 U. S. C. §2256 met constitutional standards in setting the age of majority at age 18, substituting lascivious for lewd, and prohibiting actual or simulated bestiality and sadistic or masochistic abuse. 982 F. 2d 1285, 1288-1289 (CA9 1992). It then discussed § 2252, noting it was bound by its conclusion in Thomas to construe the Act as lacking a scienter requirement for the age of minority. The court concluded that case law from this Court required that the defendant must have knowledge at least of the nature and character of the materials. 982 F. 2d, at 1290, citing Smith v. California, 361 U. S. 147 (1959); New York v. Ferber, 458 U. S. 747 (1982); and Hamling v. United States, 418 U. S. 87 (1974). The court extended these cases to hold that the First Amendment requires that the defendant possess knowledge of the particular fact that one performer had not reached the age of majority at the time the visual depiction was produced. 982 F. 2d, at 1291. Because the court found the statute did not require such a showing, it reversed respondents’ convictions. We granted certiorari, 510 U. S. 1163 (1994), and now reverse. Title 18 U. S. C. § 2252 (1988 ed. and Supp. V) provides, in relevant part: “(a) Any person who— “(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if— “(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and “(B) such visual depiction is of such conduct; “(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if— “(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and “(B) such visual depiction is of such conduct; “shall be punished as provided in subsection (b) of this section.” The critical determination which we must make is whether the term “knowingly” in subsections (1) and (2) modifies the phrase “the use of a minor” in subsections (1)(A) and (2)(A). The most natural grammatical reading, adopted by the Ninth Circuit, suggests that the term “knowingly” modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces. Under this construction, the word “knowingly” would not modify the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation. But we do not think this is the end of the matter, both because of anomalies which result from this construction, and because of the respective presumptions that some form of scienter is to be implied in a criminal statute even if not expressed, and that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions. If the term “knowingly” applies only to the relevant verbs in §2252 — transporting, shipping, receiving, distributing, and reproducing — we would have to conclude that Congress wished to distinguish between someone who knowingly transported a particular package of film whose contents were unknown to him, and someone who unknowingly transported that package. It would seem odd, to say the least, that Congress distinguished between someone who inadvertently dropped an item into the mail without realizing it, and someone who consciously placed the same item in the mail, but was nonetheless unconcerned about whether the person had any knowledge of the prohibited contents of the package. Some applications of respondents’ position would produce results that were not merely odd, but positively absurd. If we were to conclude that “knowingly” only modifies the relevant verbs in § 2252, we would sweep within the ambit of the statute actors who had no idea that they were even dealing with sexually explicit material. For instance, a retail druggist who returns an uninspected roll of developed film to a customer “knowingly distributes” a visual depiction and would be criminally liable if it were later discovered that the visual depiction contained images of children engaged in sexually explicit conduct. Or, a new resident of an apartment might receive mail for the prior resident and store the mail unopened. If the prior tenant had requested delivery of materials covered by §2252, his residential successor could be prosecuted for “knowing receipt” of such materials. Similarly, a Federal Express courier who delivers a box in which the shipper has declared the contents to be “film” “knowingly transports” such film. We do not assume that Congress, in passing laws, intended such results. Public Citi zen v. Department of Justice, 491 U. S. 440, 453-455 (1989); United States v. Turkette, 452 U. S. 576, 580 (1981). Our reluctance to simply follow the most grammatical reading of the statute is heightened by our cases interpreting criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them. The landmark opinion in Morissette v. United States, 342 U. S. 246 (1952), discussed the common-law history of mens rea as applied to the elements of the federal embezzlement statute. That statute read: “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States . . . [s]hall be fined.” 18 U. S. C. §641, cited in Morissette, 342 U. S., at 248, n. 2. Perhaps even more obviously than in the statute presently before us, the word “knowingly” in its isolated position suggested that it only attached to the verb “converts,” and required only that the defendant intentionally assume dominion over the property. But the Court used the background presumption of evil intent to conclude that the term “knowingly” also required that the defendant have knowledge of the facts that made the taking a conversion — i. e., that the property belonged to the United States. Id., at 271. See also United States v. United States Gypsum Co., 438 U. S. 422, 438 (1978) (“[F]ar more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement”). Liparota v. United States, 471 U. S. 419 (1985), posed a challenge to a federal statute prohibiting certain actions with respect to food stamps. The statute’s use of “knowingly” could be read only to modify “uses, transfers, acquires, alters, or possesses” or it could be read also to modify “in any manner not authorized by [the statute].” Noting that neither interpretation posed constitutional problems, id., at 424, n. 6, the Court held the scienter requirement applied to both elements by invoking the background principle set forth in Morissette. In addition, the Court was concerned with the broader reading which would “criminalize a broad range of apparently innocent conduct.” 471 U. S., at 426. Imposing criminal liability on an unwitting food stamp recipient who purchased groceries at a store that inflated its prices to such purchasers struck the Court as beyond the intended reach of the statute. The same analysis drove the recent conclusion in Staples v. United States, 511 U. S. 600 (1994), that to be criminally liable a defendant must know that his weapon possessed automatic firing capability so as to make it a machinegun as defined by the National Firearms Act. Congress had not expressly imposed any mens rea requirement in the provision criminalizing the possession of a firearm in the absence of proper registration. 26 U. S. C. § 5861(d). The Court first rejected the argument that the statute described a public welfare offense, traditionally excepted from the background principle favoring scienter. Morissette, supra, at 255. The Court then expressed concern with a statutory reading that would criminalize behavior that a defendant believed fell within “a long tradition of widespread lawful gun ownership by private individuals.” Staples, 511 U. S., at 610. The Court also emphasized the harsh penalties attaching to violations of the statute as a “significant consideration in determining whether the statute should be construed as dispensing with mens rea.” Id., at 616. Applying these principles, we think the Ninth Circuit’s plain language reading of § 2252 is not so plain. First, § 2252 is not a public welfare offense. Persons do not harbor settled expectations that the contents of magazines and film are generally subject to stringent public regulation. In fact, First Amendment constraints presuppose the opposite view. Rather, the statute is more akin to the common-law offenses against the “state, the person, property, or public morals,” Morissette, supra, at 255, that presume a scienter requirement in the absence of express contrary intent. Second, Staples’ concern with harsh penalties looms equally large respecting §2252: Violations are punishable by up to 10 years in prison as well as substantial fines and forfeiture. 18 U. S. C. §§ 2252(b), 2253, 2254. See also Morissette, supra, at 260. Morissette, reinforced by Staples, instructs that the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct. Staples held that the features of a gun as technically described by the firearm registration Act was such an element. Its holding rested upon “the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in defiling with the regulated items.” Staples, supra, at 619. Age of minority in §2252 indisputably possesses the same status as an elemental fact because nonob-scene, sexually explicit materials involving persons over the age of 17 are protected by the First Amendment. Alexander v. United States, 509 U. S. 544, 549-550 (1993); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989); FW/PBS, Inc. v. Dallas, 493 U. S. 215, 224 (1990); Smith v. California, 361 U. S., at 152. In the light of these decisions, one would reasonably expect to be free from regulation when trafficking in sexually explicit, though not obscene, materials involving adults. Therefore, the age of the performers is the crucial element separating legal innocence from wrongful conduct. The legislative history of the statute evolved over a period of years, and perhaps for that reason speaks somewhat indistinctly to the question whether “knowingly” in the statute modifies the elements of subsections (1)(A) and (2)(A) — that the visual depiction involves the use of a minor engaging in sexually explicit conduct — or merely the verbs “transport or ship” in subsection (1) and “receive or distribute . . . [or] reproduce” in subsection (2). In 1959, we held in Smith v. California, supra, that a California statute that dispensed with any mens rea requirement as to the contents of an obscene book would violate the First Amendment. Id., at 154. When Congress began dealing with child pornography in 1977, the content of the legislative debates suggest that it was aware of this decision. See, e. g., 123 Cong. Rec. 30935 (1977) (“It is intended that they have knowledge of the type of material. . . proscribed by this bill. The legislative history should be clear on that so as to remove any chance it will lead into constitutional problems”). Even if that were not the case, we do not impute to Congress an intent to pass legislation that is inconsistent with the Constitution as construed by this Court. Yates v. United States, 354 U. S. 298, 319 (1957) (“In [construing the statute] we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked”). When first passed, §2252 punished one who “knowingly transports or ships in interstate or foreign commerce or mails, for the purpose of sale or distribution for sale, any obscene visual or print medium” if it involved the use of a minor engaged in sexually explicit conduct. Pub. L. 95-225, 92 Stat. 7 (emphasis added). Assuming awareness of Smith, at a minimum, “knowingly” was intended to modify “obscene” in the 1978 version. In 1984, Congress amended the statute to its current form, broadening its application to those sexually explicit materials that, while not obscene as defined by Miller v. California, 413 U. S. 15 (1973), could be restricted without violating the First Amendment as explained by New York v. Ferber, 458 U. S. 747 (1982). When Congress eliminated the adjective “obscene,” all of the elements defining the character and content of the materials at issue were relegated to subsections (1)(a) and (2)(a). In this effort to expand the child pornography statute to its full constitutional limits, Congress nowhere expressed an intent to eliminate the mens rea requirement that had previously attached to the character and content of the material through the word obscene. The Committee Reports and legislative debate speak more opaquely as to the desire of Congress for a scienter requirement with respect to the age of minority. An early form of the proposed legislation, S. 2011, was rejected principally because it failed to distinguish between obscene and non-obscene materials. S. Rep. No. 95-438, p. 12 (1977). In evaluating the proposal, the Justice Department offered its thoughts: “[T]he word ‘knowingly’ in the second line of section 2251 is unnecessary and should be stricken. . . . Unless ‘knowingly’ is deleted here, the bill might be subject to an interpretation requiring the Government to prove the defendant’s knowledge of everything that follows ‘knowingly’, including the age of the child. We assume that it is not the intention of the drafters to require the Government to prove that the defendant knew the child was under age sixteen but merely to prove that the child was, in fact, less than age sixteen.... “On the other hand, the use of the word ‘knowingly’ in subsection 2252(a)(1) is appropriate to make it clear that the bill does not apply to common carriers or other innocent transporters who have no knowledge of the nature or character of the material they are transporting. To clarify the situation, the legislative history might reflect that the defendant’s knowledge of the age of the child is not an element of the offense but that the bill is not intended to apply to innocent transportation with no knowledge of the nature or character of the material involved.” Id., at 28-29. Respondents point to this language as an unambiguous revelation that Congress omitted a scienter requirement. But the bill eventually reported by the Senate Judiciary Committee adopted some, but not all, of the Department’s suggestions; most notably, it restricted the prohibition in § 2251 to obscene materials. Id., at 2. The Committee did not make any clarification with respect to scienter as to the age of minority. In fact, the version reported by the Committee eliminated § 2252 altogether. Ibid. At that juncture, Senator Roth introduced an amendment which would be another precursor of § 2252. In one paragraph, the amendment forbade any person to “knowingly transport [or] ship . . . [any] visual medium depicting a minor engaged in sexually explicit conduct.” 123 Cong. Rec. 33047 (1977). In an exchange during debate, Senator Percy inquired: “Would this not mean that the distributor or seller must have either, first, actual knowledge that the materials do contain child pornographic depictions or, second, circumstances must be such that he should have had such actual knowledge, and that mere inadvertence or negligence would not alone be enough to render his actions unlawful?” Id., at 33050. Senator Roth replied: “That is absolutely correct. This amendment, limited as it is by the phrase ‘knowingly,’ insures that only those sellers and distributors who are consciously and deliberately engaged in the marketing of child pornography ... are subject to prosecution . . ..” Ibid. The parallel House bill did not contain a comparable provision to § 2252 of the Senate bill, and limited § 2251 prosecutions to obscene materials. The Conference Committee adopted the substance of the Roth amendment in large part, but followed the House version by restricting the proscribed depictions to obscene ones. The new bill did restructure the §2252 provision somewhat, setting off the age of minority requirement in a separate subclause. S. Conf. Rep. No. 95-601, p. 2 (1977). Most importantly, the new bill retained the adverb “knowingly” in § 2252 while simultaneously deleting the word “knowingly” from § 2251(a). The Conference Committee explained the deletion in § 2251(a) as reflecting an “intent that it is not a necessary element of a prosecution that the defendant knew the actual age of the child.” Id., at 5. Respondents point to the appearance of “knowingly” in § 2251(c) and argue that §2252 ought to be read like §2251. But this argument depends on the conclusion that § 2252(c) does not include a knowing requirement, a premise that respondents fail to support. Respondents offer in support of their premise only the legislative history discussing an intent to exclude a scienter requirement from § 2251(a). Because §§ 2251(a) and 2251(c) were passed at different times and contain different wording, the intent to exclude scienter from § 2251(a) does not imply an intent to exclude scienter from § 2251(c). The legislative history can be summarized by saying that it persuasively indicates that Congress intended that the term “knowingly” apply to the requirement that the depiction be of sexually explicit conduct; it is a good deal less clear from the Committee Reports and floor debates that Congress intended that the requirement extend also to the age of the performers. But, turning once again to the statute itself, if the term “knowingly” applies to the sexually explicit conduct depicted, it is emancipated from merely modifying the verbs in subsections (1) and (2). And as a matter of grammar it is difficult to conclude that the word “knowingly” modifies one of the elements in subsections (1)(A) and (2)(A), but not the other. A final canon of statutory construction supports the reading that the term “knowingly” applies to both elements. Cases such as Ferber, 458 U. S., at 765 (“As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant”); Smith v. California, 361 U. S. 147 (1959); Hamling v. United States, 418 U. S. 87 (1974); and Osborne v. Ohio, 495 U. S. 103, 115 (1990), suggest that a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts. It is therefore incumbent upon us to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). For all of the foregoing reasons, we conclude that the term “knowingly” in §2252 extends both to the sexually explicit nature of the material and to the age of the performers. As an alternative grounds for upholding the reversal of their convictions, respondents reiterate their constitutional challenge to 18 U. S. C. § 2256. These claims were not encompassed in the question on which this Court granted cer-tiorari, but a prevailing party, without cross-petitioning, is “entitled under our precedents to urge any grounds which would lend support to the judgment below.” Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 419 (1977). Respondents argue that § 2256 is unconstitutionally vague and overbroad because it makes the age of majority 18, rather than 16 as did the New York statute upheld in New York v. Ferber, supra, and because Congress replaced the term “lewd” with the term “lascivious” in defining illegal exhibition of the genitals .of children. We regard these claims as insubstantial, and reject them for the reasons stated by the Court of Appeals in its opinion in this case. Respondents also argued below that their indictment was fatally defective because it did not contain a scienter requirement on the age of minority. The Court of Appeals did not reach this issue because of its determination that §2252 was unconstitutional on its face, and we decline to decide it here. The judgment of the Court of Appeals is Reversed. The indictment also charged six counts of violating federal obscenity statutes and two racketeering counts involving the same. Respondents were acquitted of these charges. Morissette’s treatment of the common-law presumption of mens rea recognized that the presumption expressly excepted “sex offenses, such as rape, in which the victim’s actual age was determinative despite defendant’s reasonable belief that the girl had reached age of consent.” 342 U. S., at 251, n. 8. But as in the criminalization of pornography production at 18 U. S. C. §2251, see infra, at 76, n. 5, the perpetrator confronts the underage victim personally and may reasonably be required to ascertain that victim’s age. The opportunity for reasonable mistake as to age increases significantly once the victim is reduced to a visual depiction, unavailable for questioning by the distributor or receiver. Thus we do not think the common-law treatment of sex offenses militates against our construction of the present statute. In this regard, age of minority is not a “jurisdictional fact” that enhances an offense otherwise committed with an evil intent. See, e. g., United States v. Feola, 420 U. S. 671 (1975). There, the Court did not require knowledge of “jurisdictional facts” — that the target of an assault was a federal officer. Criminal intent serves to separate those who understand the wrongful nature of their act from those who do not, but does not require knowledge of the precise consequences that may flow from that act once aware that the act is wrongful. Id., at 685. Cf. Hamling v. United States, 418 U. S. 87, 120 (1974) (knowledge that the materials at issue are legally obscene not required). The Miller test for obscenity asks whether the work, taken as a whole, “appeals to the prurient interest,” “depicts or describes [sexual conduct] in a patently offensive way,” and “lacks serious literary, artistic, political, or scientific value.” Miller, 413 U. S., at 24. The difference in congressional intent with respect to §2251 versus §2252 reflects the reality that producers are more conveniently able to ascertain the age of performers. It thus makes sense to impose the risk of error on producers. United States v. United States District Court for Central District of California, 858 F. 2d 534, 543, n. 6 (CA9 1988). Although producers may be convicted under § 2251(a) without proof they had knowledge of age, Congress has independently required both primary and secondary producers to record the ages of performers with independent penalties for failure to comply. 18 U. S. C. §§ 2257(a) and (i) (1988 ed. and Supp. V); American Library Assn. v. Reno, 33 F. 3d 78 (CADC 1994). Congress amended §2251 to insert subsection (c) in 1986. Pub. L. 99-628, 100 Stat. 3510. That provision created new offenses relating to the advertising of the availability of child pornography or soliciting children to participate in such depictions. The legislative history of § 2251(c) does address the scienter requirement: “The government must prove that the defendant knew the character of the visual depictions as depicting a minor engaging in sexually explicit conduct, but need not prove that the defendant actually knew the person depicted was in fact under 18 years of age or that the depictions violated Federal law.” H. R. Rep. No. 99-910, p. 6 (1986). It may be argued that since the House Committee Report rejects any requirement of scienter as to the age of minority for § 2251(c), the House Committee thought that there was no such requirement in § 2252. But the views of one Congress as to the meaning of an Act passed by an earlier Congress are not ordinarily of great weight, United States v. Clark, 445 U. S. 23, 33, n. 9 (1980), citing United States v. Southwestern Cable Co., 392 U. S. 157, 170 (1968), and the views of the committee of one House of another Congress are of even less weight, Pierce v. Underwood, 487 U. S. 552, 566 (1988). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

C

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Murphy delivered the opinion of the Court. This is a suit against the.United States under the Federal Tort Claims Act, 60 Stat. 842, 28 U. S. C. (1946 ed.) § 931, now 28 U. S. C. § 2674. The question is whether members of the United States armed forces can recover under that Act for injuries not incident to their service. The District Court for the Western District of North Carolina entered judgment against the Government, rendering an unreported opinion, but the Court of Appeals for the Fourth Circuit reversed, in a divided decision. 169 F. 2d 840. We brought the case here on certiorari because of its importance as an interpretation of the Act. 335 U. S. 901. The facts are these. Welker Brooks, Arthur Brooks, and their father, James Brooks, were riding in their automobile along a public highway in North Carolina on a dark, rainy night in February, 1945. Arthur was driving. He came to a full stop before entering an intersection, and proceeded across the nearer lane of the intersecting road. ' Seconds later the car was struck from the left by a United States Army truck, driven by a civilian employee of the. Army. Arthur Brooks was killed; Welker and his father were badly injured. . Welker and the administrator of Arthur’s, estate brought actions against'the United States in the District Court. The District Judge tried the causes without a jury and found negligence on the part of the truck driver. The Government moved to dismiss on the ground that Welker and his deceased brother were in the armed forces of the United States at the time of the accident, and were therefore barred from recovery. The Court denied the motion, entered a $25,425 judgment for the decedent’s estate, and a $4,000 judgment for Welker. On appeal, however, the Government’s argument persuaded' the Court of Appeals to reverse the judgment, Judge Parker dissenting. We agree with Judge Parker. The statute’s terms are clear. They provide for District Court jurisdiction over any claim founded on negligence brought against the United States. We are not persuaded that “any claim” means “any claim but that of servicemen.” The statute does contain twelve exceptions. § 421. None exclude petitioners’ claims. One is for claims arising in a foreign country. A second excludes claims arising out of combatant activities of the military or naval forces, or the Coast Guard, during time of war. These and other exceptions are too lengthy, specific, and close to the present problem to take away petitioners’ judgments. Without resorting to an automatic maxim of construction, such exceptions make it clear to us that Congress knew what it was about when it used the term “any claim.” It would be absurd to believe that Congress'did not have the servicemen in mind in 1946, when this statute was passed. The overseas and combatant activities exceptions make this plain. More than the language and framework of the act support this view. There were eighteen' tort claims bills introduced in Congress between 1925 and 1935. All but two contained exceptions denying recovery to members of the.armed forces. When the present Tort Claims Act was first introduced, the exception concerning servicemen had been dropped. 5What rémained from previous bills was an exclusion of all claims for which compensation was provided by the World War Veterans’ Act of 1924 — 43 Stat. 607, 38 U. S. C. § 421, compensation for injury or death occurring in the first World War. H. R. 181, 79th Cong., 1st Sess.. When H. R. 181 was incorporated into the Legislative Reorganization Act, the last vestige of the exclusion for members of the armed forces disappeared. See also Note, 1 Syracuse L. Rev. 87, 93-94. The Government envisages dire consequences should we reverse the judgment. A battle commander’s poor judgment, an army surgeon’s slip of hand, a defective jeep which causes injury, all would ground tort actions against the United States. But we are dealing with an accident which had nothing to do with the Brooks’ army careers, injuries not caused by their service except in the sense that all human events depend upon what has already transpired. Were the accident incident to the Brooks’ service, a wholly different case would be presented, We express no opinion as to it, but we may note that only in its context do Dobson v. United States, 27 F. 2d 807, Bradey v. United States, 151 F. 2d 742, and Jefferson v. United States, 77 F. Supp. 706, have any relevance. See the similar distinction in 31 U. S. C. § 223b. Interpretation of the same words may vary, of course, with the consequences, for those consequences may provide insight for determination of congressional purpose. Lawson v. Suwannee Fruit & Steamship Co., 336 U. S. 198. The Government’s fears may have point in reflecting congressional purpose to leave injuries incident to service where they were, despite literal language and other considerations to the contrary. The result may be so outlandish that even the factors we have mentioned would not permit recovery. But that is not the case before us. Provisions in other statutes for disability payments to servicemen, and gratuity payments to their survivors, 38 U. S. C. § 701, indicate no purpose to forbid tort actions under the Tort Claims Act. Unlike the usual workman’s compensation statute, e. g., 33 U. S. C. § 905, there is nothing, in the Tort Claims Act or the veterans’ laws which provides for exclusiveness of remedy. United States v. Standard Oil Co., 332 U. S. 301, indicates that, so far as third party liability is concerned. Nor did Congress provide for an election of remedies, as in the Federal Employees’ Compensation Act, 5 U. S. C. § 757. Thus Dahn v. Davis, 258 U. S. 421, and cases following that decision, are not in point. Compare Parr v. United States, 172 F. 2d 462. We will not call either remedy in the present case exclusive, nor pronounce a doctrine of election of remedies, when Congress has not done so. Compare 31 U. S. C. § 224b, specifically repealed by the Tort Claims Act, § 424 (a). In the very Act we are construing, Congress provided for exclusiveness of the remedy in three instances, §§ 403 (d), 410 (b), and 423, and.omitted any provision which would govern this case. But this does not mean that the amount payable under servicemen’s benefit laws should not be deducted, or taken into consideration, when the serviceman obtains judgment under the Tort Claims Act. Without the benefit of argument in this Court, or discussion of the matter in the Court of Appeals, we now see no indication that Congress meant the United States to pay twice for the same injury. Certain elements of tort damages may be the equivalent of elements taken into account in providing disability payments. It would seem incongruous, at first glance, if the United States should have to pay in tort for hospital expenses it had already paid, for example. And whatever the legal theory behind a wrongful death action, the same considerations might apply to the Government’s gratuity death payment to Arthur Brooks’ survivors, although national service life insurance might be considered a separate transaction, unrelated to an action in tort or other benefits. But the statutory scheme and the Veterans’ Administration regulations may dictate a contrary result. The point was not argued in the case as it came to us from the Court of Appeals. The court below does not appear to have passed upon it; it was unnecessary, in the view they took of the case. We do not know from this record whether the Government objected to this portion of the District Court judgment — nor can we tell from this record whether the Court of Appeals should consider a general. objection to the judgment sufficient to allow it to consider this problem. Finally, we are not sure how much deducting the District Judge did. It is obvious that we are in no position to pass upon the question of deducting other benefits in the case’s present posture.- We conclude that the language, framework and" legislative history of the Tort Claims Act require a holding that petitioners’ actions were well founded. But we re-r mand to the. Court of Appeals for its consideration of the problem of reducing damages pro tanto, should it decide that such consideration is proper in view of the District Court judgment and the parties’ allegations of error. Reversed and remanded. Mr. Justice Frankfurter and Mr. Justice Douglas dissent, substantially for the reasons set forth by Judge Dobie, below, 169 F. 2d 840. James Brooks, the father, also recovered judgment in his own right. The Government does not contest his recovery.. H. R. 12178, 68th Cong., 2d Sess.; H. R. 12179, 68th Cong., 2d Sess.; S. 1912, 69th Cong., 1st Sess.; H. R. 6716, 69th Cong., 1st Sess.; H. R. 8914, 69th Cong., 1st Sess.; H. R. 9285, 70th Cong., 1st Sess.; S. 4377, 71st Cong., 2d Sess.; H. R. 15428, 71st Cong., 3d Sess.; H. R. 16429, 71st Cong., 3d Sess¡; H. R. 17168, 71st Cong., 3d Sess.; H. R. 5065, 72d Cong., 1st Sess.; S. 211, 72d Cong., 1st Sess.; S. 4567, 72d Cong., 1st Sess.; S. 1833, 73d Cong., 1st Sess.; H. R. 129, 73d Cong., 1st Sess.; H. R. 8561, 73d Cong., 2d Sess.; H. R. 2028, 74th Cong., 1st Sess.; S. 1043, 74th Cong., 1st Sess. H. R. 8561, 73d Cong., 2d Sess.; H. R. 12178, 68th Cong., 2d Sess. Other bills after those mentioned in note 2, above, also omitted this exception. See, e. g., H. R. 5373, 77th Cong., 1st Sess.; H. R. 1356, 78th Cong., 1st Sess. This has nothing to do with “congressional awareness” of the Dobson and Bradey decisions, infra. The present Tort Claims Act contains exceptions which would have been specifically covered by those cases. § 421 (d). The Government’s other arguments on this phase of the case are sleeveless. They will not be discussed. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Alito delivered the opinion of the Court. The question presented in this case is whether the Equal Access to Justice Act (EAJA), 5 U. S. C. § 504(a)(1) (2006 ed.) and 28 U. S. C. § 2412(d)(1)(A) (2000 ed.), allows a prevailing party in a case brought by or against the Government to recover fees for paralegal services at the market rate for such services or only at their cost to the party’s attorney. The United States Court of Appeals for the Federal Circuit limited recovery to the attorney’s cost. 472 F. 3d 1370 (2006). We reverse. I Petitioner Richlin Security Service Co. (Richlin) is a small California proprietorship. In the early 1990’s, it was engaged by the former Immigration and Naturalization Service to provide guard services for detainees at Los Angeles International Airport. Through mutual mistake, the parties’ two contracts misclassified Richlin’s employees under the Service Contract Act of 1965, 41 U. S. C. § 351 et seq. The Department of Labor discovered the misclassification and ordered Richlin to pay its employees back wages. Richlin responded by filing a claim against the Government with the Department of Transportation’s Board of Contract Appeals (Board). The claim sought reformation of the two contracts in order to force the Government to make additional payments necessary to cover Richlin’s liability under the Service Contract Act. Richlin prevailed after extensive litigation, and the Board entered an award in its favor. Richlin then filed an application with the Board for reimbursement of its attorney’s fees, expenses, and costs pursuant to EAJA. Under EAJA, “[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.” 5 U. S. C. § 504(a)(1). In addition to its other fees and expenses, Richlin sought $45,141.10 for 523.8 hours of paralegal work on its contract claim and $6,760 for 68.2 hours of paralegal work on the EAJA application itself. Thé Board granted Richlin’s application in part. Richlin Security Service Co. v. Department of Justice, Docket Nos. 3034E, 3035E, Contract Nos. WRO-06-90, WRO-03-91, 2005 WL 1635099 (June 30, 2005), App. to Pet. for Cert. 25a. It found that Richlin met § 504(b)(l)(B)’s eligibility requirements, see id., at 30a, and that the Government’s position had not been “substantially justified” within the meaning of § 504(a)(1), id., at 32a. It concluded, however, that Richlin was not entitled to recover its paralegal fees at the rates (ranging from $50 per hour to $95 per hour) at which Richlin was billed by its law firm. See id., at 39a. The Board held that EAJA limited recovery of paralegal fees to “the cost to the firm rather than... the billed rate.” Ibid. Richlin had not submitted any evidence regarding the cost of the paralegal services to its law firm, see ibid., but the Board found that “$35 per hour is a reasonable cost to the firm[,] having taken judicial notice of paralegal salaries in the Washington D. C. area as reflected on the internet,” id., at 42a-43a. A divided panel of the Federal Circuit affirmed. 472 F. 3d 1370. The court construed the term “fees,” for which ÉAJA authorizes recovery at “prevailing market rates,” § 504(b)(1)(A), as embracing only the fees of attorneys, experts, and agents. See id., at 1374. The court declined to follow the contrary decision of the Eleventh Circuit in Jean v. Nelson, 863 F. 2d 759 (1988), aff’d sub nom. Commissioner v. Jean, 496 U. S. 154 (1990). It also distinguished this Court’s decisions in Missouri v. Jenkins, 491 U. S. 274 (1989), and West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83 (1991), reasoning that those cases involved a different fee-shifting statute with different “‘goals and objectives.’” 472 F. 3d, at 1375-1377, 1379 (discussing the Civil Rights Attorney’s Fees Awards Act of 1976,42 U. S. C. § 1988). The court instead found support for its interpretation in EAJA’s legislative history, see 472 F. 3d, at 1381 (citing S. Rep. No. 98-586 (1984) (hereinafter S. Rep.)), and in considerations of public policy, see 472 F. 3d, at 1380-1381. Judge Plager dissented. He believed that the authorities distinguished by the majority (particularly this Court’s decisions in Jenkins and Casey) were indistinguishable. He also identified “sound policy reasons for... adopting the Supreme Court’s take of the case, even if we thought we had a choice.” 472 F. 3d, at 1383. Richlin petitioned for rehearing, pointing out that the approach taken by the Eleventh Circuit in Jean had been followed by several other Circuits. See 482 F. 3d 1358, 1359 (CA Fed. 2007) (citing Role Models Am., Inc. v. Brownlee, 353 F. 3d 962, 974 (CADC 2004); Hyatt v. Barnhart, 315 F. 3d 239, 255 (CA4 2002); and Miller v. Alamo, 983 F. 2d 856, 862 (CA8 1993)). The panel denied rehearing over Judge Plager’s dissent, and the full court denied rehearing en banc. See App. to Pet. for Cert. 57a. We granted certiorari. 552 U. S. 1021 (2007). II A EAJA permits an eligible prevailing party to recover “fees and other expenses incurred by that party in connection with” a proceeding before an administrative agency. 5 U. S. C. § 504(a)(1). EAJA defines “fees and other expenses” as follows: “ ‘[F]ees and other expenses’ includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the agency to be necessary for the preparation of the party’s case, and reasonable attorney or agent fees (The amount of fees awarded under this section shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the agency involved, and (ii) attorney or agent fees shall not be awarded in excess of $125 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee.)” § 504(b)(1)(A). In this case, Richlin “incurred” “fees” for paralegal services in connection with its contract action before the Board. Since § 504(b)(1)(A) awards fees at “prevailing market rates,” a straightforward reading of the statute leads to the conclusion that Richlin was entitled to recover fees for the paralegal services it purchased at the market rate for such services. The Government resists this reading by distinguishing “fees” from “other expenses.” The Government concedes that “fees” are reimbursable at “prevailing market rates,” but it insists that “other expenses” (including expenses for “any study, analysis, engineering report, test, or project”) are reimbursable only at their “reasonable cost.” And in the Government’s view, outlays for paralegal services are better characterized as “other expenses” than as “fees.” The Government observes that the second sentence of § 504(b)(1)(A), which explains how to calculate awards for “fees,” refers to attorneys, agents, and expert witnesses, without mentioning paralegals. From this omission, the Government infers that Congress intended to treat expenditures for paralegal services not as “fees” but as “other expenses,” recoverable at “reasonable cost.” We find the Government’s fractured interpretation of the statute unpersuasive. Contrary to the Government’s contention, § 504(b)(1)(A) does not clearly distinguish between the rates at which “fees” and “other expenses” are reimbursed. Although the statute does refer to the “reasonable cost” of “any study, analysis, engineering report, test, or project,” Congress may reasonably have believed that market rates would not exist for work product of that kind. At one point, Congress even appears to use the terms “expenses” and “fees” interchangeably: The first clause of § 504(b)(1)(A) refers to the “reasonable expenses of expert witnesses,” while the parenthetical characterizes expert compensation as “fees.” There is no indication that Congress, in using the term “expenses” in one place and “fees” in the other, was referring to two different components of expert remuneration. Even if the dichotomy that the Government draws between “fees” and “other expenses” were supported by the statutory text, it would hardly follow that amounts billed for paralegal services should be classified as “expenses” rather than as “fees.” The Government concludes that the omission of paralegal fees from § 504(b)(l)(A)’s parenthetical (which generally authorizes reimbursement at “prevailing market rates”) implies that the recovery of paralegal fees is limited to cost. But one could just as easily conclude that the omission of paralegal fees from the litany of “any study, analysis, engineering report, test, or project” (all of which are recoverable at “reasonable cost”) implies that paralegal fees are recoverable at market rates. Surely paralegals are more analogous to attorneys, experts, and agents than to studies, analyses, reports, tests, and projects. Even the Government’s brief, which incants the term “paralegal expenses,” e. g., Brief for Respondent 4, 5, 6, 7, 8, 9, 10, 11, 12, slips up once and refers to them as “fees,” see id., at 35 (“As the court of appeals explained, treating paralegal fees as attorney fees could ‘distort the normal allocation of work and result in a less efficient performance of legal services’ under the EAJA... ”). But even if we agreed that E A JA limited a prevailing party’s recovery for paralegal fees to “reasonable cost,” it certainly would not follow that the cost should be measured from the perspective of the party’s attorney. To the contrary, it would be anomalous to measure cost from the perspective of the attorney rather than the client. We do not understand the Government to contend, for example, that the “reasonable cost” of an “engineering report” or “analysis” should be calculated from the perspective of the firm that employs the engineer or analyst. Such an interpretation would be tough to square with the statutory language, which provides that an agency shall award to a prevailing party “fees and other expenses incurred by that party.” 5 U. S. C. § 504(a)(1) (emphasis added); see also § 504(b)(1)(A). That language leaves no doubt that Congress intended the “reasonable cost” of the specified items in § 504(b)(1)(A) to be calculated from the perspective of the litigant. That being the case, we find it hard to believe that Congress, without even mentioning paralegals, intended to make an exception of them by calculating their cost from the perspective of their employer rather than the litigant. It seems more plausible that Congress intended all “fees and other expenses” to be recoverable at the litigant’s “reasonable cost,” subject to the proviso that “reasonable cost” would be deemed to be “prevailing market rates” when such rates could be determined. B To the extent that some ambiguity subsists in the statutory text, we need not look far to resolve it, for we have already addressed a similar question with respect to another fee-shifting statute. In Missouri v. Jenkins, 491 U. S. 274 (1989), we considered whether litigants could recover paralegal fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. § 1988. Section 1988 provides that “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” We concluded that the term “attorney’s fee” in § 1988 “cannot have been meant to compensate only work performed personally by members of the bar.” 491 U. S., at 285. Although separate billing for paralegals had become “increasingly widespread,” id., at 286 (internal quotation marks omitted), attorney’s fees had traditionally subsumed both the attorney’s personal labor and the labor of paralegals and other individuals who contributed to the attorney’s work product, see id., at 285. We were so confident that Congress had given the term “attorney’s fees” this traditional gloss that we declared it “self-evident” that the term embraced the fees of paralegals as well as attorneys. Ibid. We think Jenkins substantially answers the question before us. EAJA, like §1988, entitles certain parties to recover “reasonable attorney... fees.” 5 U. S. C. § 504(b)(1)(A). EAJA, like § 1988, makes no mention of the paralegals, “secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client.” Jenkins, supra, at 285. And we think EAJA, like § 1988, must be interpreted as using the term “attorney... fees” to reach fees for paralegal services as well as compensation for the attorney’s personal labor. The Government does not contend that the meaning of the term “attorney’s fees” changed so much between § 1988’s enactment in 1976 and EAJA’s enactment in 1980 that the term’s meaning in one statute must be different from its meaning in the other. Under the reasoning of Jenkins, we take it as “self-evident” that when Congress instructed agencies to award “attorney... fees” to certain parties prevailing against the Government, that term was intended to embrace paralegal fees as well. Since §504 generally provides for recovery of attorney’s fees at “prevailing market rates,” it follows that fees for paralegal services must be recoverable at prevailing market rates as well. The Government contends that our decision in Jenkins was driven by considerations arising from the different context in which the term “attorney’s fee” was used in § 1988. At the time Jenkins was decided, §1988 provided for the recovery of attorney’s fees without reference to any other recoverable “expenses.” The Government insists that Jenkins found paralegal fees recoverable under the guise of “attorney’s fee[s]” because otherwise paralegal fees would not be recoverable at all. Since EAJA expressly permits recovery (albeit at “cost”) for items other than attorney, agent, and expert witness fees, the Government sees no reason to give EAJA the broad construction that Jenkins gave § 1988. The Government’s rationale for distinguishing Jenkins finds no support either in our opinion there or in our subsequent decisions. Our opinion in Jenkins expressed no apprehension at the possibility that a contrary decision would leave the claimant emptyhanded. This omission is unsurprising, since our decision in Jenkins did not rest on the conviction that recovery at market rates was better than nothing. Our decision rested instead on the proposition— a proposition we took as “self-evident” — that the term “attorney’s fee” had historically included fees for paralegal services. Indeed, the Government’s interpretation of Jenkins was rejected by this Court just two years after Jenkins was handed down. In West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, the petitioner sought to recover expert witness fees from the Commonwealth of Pennsylvania pursuant to § 1988. The petitioner looked to Jenkins for the proposition that the “broad remedial purposes” of § 1988 allowed the recovery of fees not expressly authorized by statute. The Court rejected that interpretation of Jenkins: “The issue [in Jenkins] was not, as [petitioner] contends, whether we would permit our perception of the ‘policy’ of the statute to overcome its ‘plain language.’ It was not remotely plain in Jenkins that the phrase ‘attorney’s fee’ did not include charges for law clerk and paralegal services. Such services, like the services of ‘secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product,’ had traditionally been included in calculation of the lawyers’ hourly rates. Only recently had there arisen ‘the increasingly widespread custom of separately billing for [such] services.’ By contrast, there has never been, to our knowledge, a practice of including the cost of expert services within attorneys’ hourly rates. There was also no record in Jenkins — as there is a lengthy record here — of statutory usage that recognizes a distinction between the charges at issue and attorney’s fees.” Casey, supra, at 99 (quoting 491 U. S., at 285-286; some internal quotation marks and citations omitted). Our analysis of Jenkins in Casey refutes the Government’s claim that Jenkins had to stretch the law to fit hard facts. As Casey shows, our decision in Jenkins turned not on extra-textual policy goals but on the traditional meaning of the term “attorney’s fees.” Ill The Government parries this textual and doctrinal analysis with legislative history and public policy. We are not persuaded by either. The legislative history cited by the Government does not address the question presented, and policy considerations actually counsel in favor of Richlin’s interpretation. A The Government contends first that a 1984 Senate Report accompanying the bill that reenacted EAJA unequivocally expressed congressional intent that paralegal fees should be recovered only “‘at cost.’” Brief for Respondent 29 (quoting S. Rep., at 15; emphasis in original). It next contends that the Report tacitly endorsed the same result by approving model rules of the Administrative Conference of the United States and a pre-EAJA Sixth Circuit decision, both of which had adopted schemes of reimbursement at attorney cost. See Brief for Respondent 29. We are not persuaded. In our view, the legislative history does not even address the question presented, much less answer it in the Government’s favor. The Senate Report accompanying the 1984 bill remarked that “[e]xamples of the type of expenses that should ordinarily be compensable [under EAJA] include paralegal time (billed at cost).” S. Rep., at 15. The Government concludes from this stray remark that Congress intended to limit recovery of paralegal fees to attorney cost. But as we observed earlier, the word “cost” could just as easily (and more sensibly) refer to the client’s cost rather than the attorney’s cost. Under the former interpretation, the Senate Report simply indicates that a prevailing party who satisfies E A JA’s other requirements should generally be able to “bil[l] ” the Government for any reasonable amount the party paid for paralegal services. Since the litigant’s out-of-pocket cost for paralegal services would normally be equal to' the “prevailing market rat[e]” for such services, 5 U. S. C. § 504(b)(1)(A), the Senate Report could easily support Richlin’s interpretation. Moreover, even if the Government’s interpretation of the word “cost” is correct, that interpretation would not be inconsistent with our decision today. “Nothing in [EAJA] requires that the work of paralegals invariably be billed separately. If it is the practice in the relevant market not to do so, or to bill the work of paralegals only at cost, that is all that [EAJA] requires.” Jenkins, 491U. S., at 288 (construing 42 U. S. C. § 1988). We thus recognize the possibility, as we did in Jenkins, that the attorney’s cost for paralegal services will supply the relevant metric for calculating the client’s recovery. Whether that metric is appropriate depends on market practice. The Senate Report, even under the Government’s contestable interpretation, is not inconsistent with that conclusion. On the contrary, the Report implies that courts should look to market practice in setting EAJA awards. See S. Rep., at 15 (“The Act should not be read... to permit reimbursement for items ordinarily included in office overhead, nor for any other expenses not reasonable in amount, necessary for the conduct of the litigation, and customarily chargeable to clients” (emphasis added)). Beyond that vague guidance, the Report does not address the critical question in this case: whether EAJA limits recovery of paralegal fees to attorney cost regardless of market practice. As such, the Report does not persuade us of the soundness of the Government’s interpretation of the statute. The Government’s reliance on the Sixth Circuit’s decision in Northcross v. Board of Ed. of Memphis City Schools, 611 F. 2d 624 (1979), founders for the same reason. The Government contends that Northcross approved of reimbursement at attorney cost under 42 U. S. C. § 1988 and that the 1984 Senate Report, by endorsing Northcross, tacitly approved of the same result for EAJA. See Brief for Respondent 30 (citing Northcross, supra, at 639). The problem again is that Northcross did not decide whether a litigant’s recovery for paralegal services would be limited to his attorney’s cost even in a market where litigants were customarily billed at “prevailing market rates.” Although the Sixth Circuit seems to have been aware that paralegal services could be billed to clients at market rates, some language in its opinion suggests that the court assumed that attorneys billed their clients only for the out-of-pocket cost of paralegal services. Since Northcross does not clearly address the question presented, its endorsement in the Senate Report means little. Finally, the model rules cited in the Senate Report may actually support Richlin’s position. The implementing release for the rules describes the Administrative Conference’s approach to paralegal costs as follows: “Commenters also took varying positions on whether paralegal costs should be chargeable as expenses. We do not believe the rules should discourage the use of paralegals, which can be an important cost-saving measure. On the other hand, lawyers’ practices with respect to charging for paralegal time, as with respect to other expenses such as duplicating, telephone charges and the like, vary according to locality, field of practice, and individual custom. We have decided not to designate specific items as compensable expenses. Instead, we will adopt a suggestion of the Treasury Department and revise the model rule to provide that expenses may be charged as a separate item if they are ordinarily so charged to the attorney’s clients.” Administrative Conference of the U. S., Equal Access to Justice Act: Agency Implementation, 46 Fed. Reg. 32905 (1981). To the extent that this passage addresses the question presented at all, it seems to take the same approach that the Court took in Jenkins and that we adopt today: It allows the recovery of paralegal fees according to “the practice in the relevant market.” 491 U. S., at 288. But we think the fairest interpretation of the implementing release is that it does not address how awards for paralegal fees should be calculated. Instead, it addresses the anterior question whether courts may award paralegal fees under EAJA at all. See, e. g., 46 Fed. Reg. 32905 (responding to comments urging that the model rules “identify particular expenses of attorneys and witnesses that are compensable”). Like the other legislative authorities cited by the Government, the model rules fail to persuade us of the soundness of the Government’s interpretation because they fail to clearly address the question presented. B We find the Government’s policy rationale for recovery at attorney cost likewise unpersuasive. The Government argues that market-based recovery would distort litigant incentives because EAJA would cap paralegal and attorney’s fees at the same rate. See 5 U. S. C. § 504(b)(1)(A) (“[Attorney or agent fees shall not be awarded in excess of $125 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee”). The Government observes that paralegal rates are lower than rates for attorneys operating in the same market. If EAJA reimbursed both attorney time and paralegal time at market rates, then the cap would clip more off the top of the attorney’s rates than the paralegal’s rates. According to the Government, a market-based scheme would encourage litigants to shift an inefficient amount of attorney work to paralegals, since paralegal fees could be recovered at a greater percentage of their full market value. The problem with this argument, as Richlin points out, is that it proves too much. The same reasoning would imply that agent fees should not be recoverable at market rates. If market-based recovery of paralegal time resulted in excessive reliance on paralegals, then market-based recovery of agent time should result in excessive reliance on agents. The same reasoning would also imply that fees for junior attorneys (who generally bill at lower rates than senior attorneys) should not be recoverable at market rates. Cf. Jenkins, supra, at 287 (“If the fees are consistent with market rates and practices, the ‘windfall’ argument has no more force with regard to paralegals than it does for associates”). Yet despite the possibility that market-based recovery of attorney and agent fees would distort litigant incentives, § 504 unambiguously authorizes awards of “reasonable attorney or agent fees... [at] prevailing market rates.” 5 U. S. C. § 504(b)(1)(A). The Government offers no persuasive reason why Congress would have treated paralegal fees any differently. The Government’s policy rationale thus founders on the text of the statute, which shows that Congress was untroubled by the very distortion the Government seeks to prevent. We also question the practical feasibility of the Government’s interpretation of the statute. The Board in this case relied on the Internet for data on paralegal salaries in the District of Columbia, but the Government fails to explain why a law firm’s cost should be limited to salary. The benefits and perks with which a firm compensates its staff come out of the bottom line no less than salary. The Government has offered no solution to this accounting problem, and we do not believe that solutions are readily to be found. Market practice provides by far the more transparent basis for calculating a prevailing party’s recovery under EAJA. It strains credulity that Congress would have abandoned this predictable, workable framework for the uncertain and complex accounting requirements that a cost-based rule would inflict on litigants, their attorneys, administrative agencies, and the courts. IV Confronted with the flaws in its interpretation of the statute, the Government seeks shelter in a canon of construction. According to the Government, any right to recover paralegal fees under E A JA must be read narrowly in light of the statutory canon requiring strict construction of waivers of sovereign immunity. We disagree. The sovereign immunity canon is just that — a canon of construction. It is a tool for interpreting the law, and we have never held that it displaces the other traditional tools of statutory construction. Indeed, the cases on which the Government relies all used other tools of construction in tandem with the sovereign immunity canon. See Ardestani v. INS, 502 U. S. 129, 137 (1991) (relying on the canon as “reinforce[ment]” for the independent “conclusion that any ambiguities in the legislative history are insufficient to undercut the ordinary understanding of the statutory language”); Ruckelshaus v. Sierra Club, 463 U. S. 680, 682, 685-686 (1983) (relying on the canon in tandem with “historic principles of fee-shifting in this and other countries” to define the scope of a fee-shifting statute); Department of Energy v. Ohio, 503 U. S. 607, 626-627 (1992) (resorting to the canon only after a close reading of the statutory provision had left the Court “with an unanswered question and an unresolved tension between closely related statutory provisions”); see also Smith v. United States, 507 U. S. 197, 201-203 (1993) (invoking the sovereign immunity canon only after observing that the claimant’s argument was “undermine[d]” by the “commonsense meaning” of the statutory language). In this case, traditional tools of statutory construction and considerations of stare decisis compel the conclusion that paralegal fees are recoverable as attorney’s fees at their “prevailing market rates.” 5 U. S. C. § 504(b)(1)(A). There is no need for us to resort to the sovereign immunity canon because there is no ambiguity left for us to construe. V For these reasons, we hold that a prevailing party that satisfies EAJA’s other requirements may recover its paralegal fees from the Government at prevailing market rates. The Board’s contrary decision was error, and the Federal Circuit erred in affirming that decision. The judgment of the Federal Circuit is reversed, and this case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Scalia joins this opinion except as to Part III-A, and Justice Thomas joins this opinion except as to Parts II-B and III. Richlin was actually billed for paralegal services at rates as high as $135 per hour, but it amended its application to cap the fees at $95 per hour. See App. to Pet. for Cert. 39a; Brief for Petitioner 9; Brief for Respondent 4, n. 2. Some agencies allow nonattorney representatives, known as “agents,” to assist parties with the presentation of their cases. See n. 10, infra. Richlin has never claimed that a paralegal may qualify as an “agent” within the meaning of § 504(b)(1)(A). Virtually identical fee-shifting provisions apply to actions by or against the Government in federal court. See 28 U. S. C. §§ 2412(a)(1), (d)(2)(A). The question presented addresses both §§504 and 2412, but the Federal Circuit’s decision resolved only petitioner’s § 504 application, and the Government avers (without challenge from Richlin) that § 2412 “is not at issue in this case.” Brief for Respondent 2, n. 1. We assume without deciding that the reasoning of our opinion would extend equally to §§ 504 and 2412. We confine our discussion to § 504. The Government contends that the question presented does not fairly include the question whether the cost of paralegal services should be calculated from the perspective of the litigant rather than the litigant’s attorney. We disagree. The question presented in Riehlin’s petition for certiorari was whether “a prevailing party [may] be awarded attorney fees for paralegal services at the market rate for such services,... [or at] cost only.” Pet. for Cert. i. A decision limiting reimbursement to “cost only” would simply beg the question of how that cost should be measured. Since the question presented cannot genuinely be answered without addressing the subsidiary question, we have no difficulty concluding that the latter question is “fairly included” within the former. See this Court’s Rule 14.1(a). It is worth recalling that the Board calculated Riehlin’s award based on an Internet survey of paralegal salaries in the District of Columbia. Presumably the salaries the Board identified represented the market rate for paralegal compensation. The limited award that the Government wants affirmed was thus based, ironically enough, on the “prevailing market rates” for paralegal services. The fact that paralegal salaries respond to market forces no less than the fees that clients pay suggests to us that this case has more to do with determining whose expenditures get reimbursed (the attorney’s or the client’s) than with determining how expenditures are calculated (at cost or at market). Since EAJA authorizes the recovery of fees and other expenses “incurred by [the] party,” § 504(a)(1), rather than the party’s attorney, the answer to the former question is plain. Following our decision in Casey, Congress amended §1988 to allow parties to recover “expert fees as part of the attorney’s fees.” Civil Rights Act of 1991, § 113(a), 105 Stat. 1079 (codified at 42 U. S. C. § 1988(c)). The version of EAJA first enacted in 1980 had a sunset provision effective October 1,1984. See §§ 203(c), 204(e), 94 Stat. 2327, 2329. Congress revived EAJA without the sunset provision (but with certain other amendments) in 1985. See Act of Aug. 5,1985, §§ 1-2, 6,99 Stat. 183-186; see also n. 8, infra; see generally Scarborough v. Principi, 541 U. S. 401, 406-407 (2004) (summarizing EAJA’s legislative history). Richlin makes a threshold challenge to the legitimacy of the 1984 Senate Report as legislative history, observing that the bill it accompanied was vetoed by the President before being enacted by a subsequent Congress. See Brief for Petitioner 27 (“To the extent that legislative history serves as legitimate evidence of congressional intent, it does so only because it is presumed to have been ratified by Congress and the President when the relevant legislation was enacted” (citing Siegel, The Use of Legislative History in a System of Separated Powers, 53 Vand. L. Rev. 1457, 1522 (2000); and Sullivan v. Finkelstein, 496 U. S. 617, 631-632 (1990) (Scalia, J., concurring in part))). But see Melkonyan v. Sullivan, 501 U. S. 89, 96 (1991) (relying on the same Report to interpret EAJA’s 1985 amendments). Because the legislative history is a wash in this case, we need not decide precisely how much weight it deserves in our analysis. Compare Northcross, 611 F. 2d, at 638 (“[A] scale of fees as is used Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

F

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Scalia delivered the opinion of the Court. This case requires us to determine whether either the Confrontation Clause of the Sixth Amendment or Rule 802 of the Federal Rules of Evidence bars testimony concerning a prior, out-of-court identification when the identifying witness is unable, because of memory loss, to explain the basis for the identification. I On April 12, 1982, John Foster, a correctional counselor at the federal prison in Lompoc, California, was attacked and brutally beaten with a metal pipe. His skull was fractured, and he remained hospitalized for almost a month. As a result of his injuries, Foster’s memory was severely impaired. When Thomas Mansfield, an FBI agent investigating the assault, first attempted to interview Foster, on April 19, he found Foster lethargic and unable to remember his attacker’s name. On May 5, Mansfield again spoke to Foster, who was much improved and able to describe the attack. Foster named respondent as his attacker and identified respondent from an array of photographs. Respondent was tried in Federal District Court for assault with intent to commit murder under 18 U. S. C. § 113(a). At trial, Foster recounted his activities just before the attack, and described feeling the blows to his head and seeing blood on the floor. He testified that he clearly remembered identifying respondent as his assailant during his May 5th interview with Mansfield. On cross-examination, he admitted that he could not remember seeing his assailant. He also admitted that, although there was evidence that he had received numerous visitors in the hospital, he was unable to remember any of them except Mansfield, and could not remember whether any of these visitors had suggested that respondent was the assailant. Defense counsel unsuccessfully sought to refresh his recollection with hospital records, including one indicating that Foster had attributed the assault to someone other than respondent. Respondent was convicted and sentenced to 20 years’ imprisonment to be served consecutively to a previous sentence. On appeal, the United States Court of Appeals for the Ninth Circuit considered challenges based on the Confrontation Clause and Rule 802 of the Federal Rules of Evidence. By divided vote it upheld both challenges (though finding the Rule 802 violation harmless error), and reversed the judgment of the District Court. 789 F. 2d 750 (1986). We granted certiorari, 479 U. S. 1084 (1987), to resolve the conflict with other Circuits on the significance of a hearsay declarant’s memory loss both with respect to the Confrontation Clause, see, e. g., United States ex rel. Thomas v. Cuyler, 548 F. 2d 460, 462-463 (CA3 1977), and with respect to Rule 802, see, e. g., United States v. Lewis, 565 F. 2d 1248, 1252 (CA2 1977), cert. denied, 435 U. S. 973 (1978). II The Confrontation Clause of the Sixth Amendment gives the accused the right “to be confronted with the witnesses against him.” This has long been read as securing an adequate opportunity to cross-examine adverse witnesses. See, e. g., Mattox v. United States, 156 U. S. 237, 242-243 (1895); Douglas v. Alabama, 380 U. S. 415, 418 (1965). This Court has never held that a Confrontation Clause violation can be founded upon a witness’ loss of memory, but in two cases has expressly left that possibility open. In California v. Green, 399 U. S. 149, 157-164 (1970), we found no constitutional violation in the admission of testimony that had been given at a preliminary hearing, relying on (as one of two independent grounds) the proposition that the opportunity to cross-examine the witness at trial satisfied the Sixth Amendment’s requirements. We declined, however, to decide the admissibility of the same witness’ out-of-court statement to a police officer concerning events that at trial he was unable to recall. In remanding on this point, we noted that the state court had not considered, and the parties had not briefed, the possibility that the witness’ memory loss so affected the petitioner’s right to cross-examine as to violate the Confrontation Clause. Id., at 168-169. Justice Harlan, in a scholarly concurrence, stated that he would have reached the issue of the out-of-court statement, and would have held that a witness’ inability to “recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which the statement was given, does not have Sixth Amendment consequence.” Id., at 188. In Delaware v. Fensterer, 474 U. S. 15 (1985) (per curiam), we determined that there was no Confrontation Clause violation when an expert witness testified as to what opinion he had formed, but could not recollect the basis on which he had formed it. We said: “The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.” Id., at 21-22. Our opinion noted that a defendant seeking to discredit a forgetful expert witness is not without ammunition, since the jury may be persuaded that “his opinion is as unreliable as his memory.” Id., at 19. We distinguished, however, the unresolved issue in Green on the basis that that involved the introduction of an out-of-court statement. 474 U. S., at 18. Justice Stevens, concurring in the judgment, suggested that the question at hand was in fact quite close to the question left open in Green. 474 U. S., at 23-24. Here that question is squarely presented, and we agree with the answer suggested 18 years ago by Justice Harlan. “[T]he Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’” Kentucky v. Stincer, 482 U. S. 730, 739 (1987), quoting Fensterer, supra, at 20 (emphasis added); Delaware v. Van Arsdall, 475 U. S. 673, 679 (1986); Ohio v. Roberts, 448 U. S. 56, 73, n. 12 (1980). As Fensterer demonstrates, that opportunity is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief. It is sufficient that the defendant has the opportunity to bring out such matters as the witness’ bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination, see 3A J. Wigmore, Evidence § 995, pp. 931-932 (J. Chadbourn rev. 1970)) the very fact that he has a bad memory. If the ability to inquire into these matters suffices to establish the constitutionally requisite opportunity for cross-examination when a witness testifies as to his current belief, the basis for which he cannot recall, we see no reason why it should not suffice when the witness’ past belief is introduced and he is unable to recollect the reason for that past belief. In both cases the foundation for the belief (current or past) cannot effectively be elicited, but other means of impugning the belief are available. Indeed, if there is any difference in persuasive impact between the statement “I believe this to be the man who assaulted me, but can’t remember why” and the statement “I don’t know whether this is the man who assaulted me, but I told the police I believed so earlier,” the former would seem, if anything, more damaging and hence give rise to a greater need for memory-testing, if that is to be considered essential to an opportunity for effective cross-examination. We conclude with respect to this latter example, as we did in Fensterer with respect to the former, that it is not. The weapons available to impugn the witness’ statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee. They are, however, realistic weapons, as is demonstrated by defense counsel’s summation in this very case, which emphasized Foster’s memory loss and argued that his identification of respondent was the result of the suggestions of people who visited him in the hospital. Our constitutional analysis is not altered by the fact that the testimony here involved an out-of-court identification that would traditionally be categorized as hearsay. See Advisory Committee’s Notes on Fed. Rule Evid. 801(d)(1)(C), 28 U. S. C. App., p. 717. This Court has recognized a partial (and somewhat indeterminate) overlap between the requirements of the traditional hearsay rule and the Confrontation Clause. See Green, 399 U. S., at 155-156; id., at 173 (Harlan, J., concurring). The dangers associated with hearsay inspired the Court of Appeals in the present case to believe that the Constitution required the testimony to be examined for “indicia of reliability,” Dutton v. Evans, 400 U. S. 74, 89 (1970), or “particularized guarantees of trustworthiness,” Roberts, supra, at 66. We do not think such an inquiry is called for when a hearsay declarant is present at trial and subject to unrestricted cross-examination. In that situation, as the Court recognized in Green, the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness’ demeanor satisfy the constitutional requirements. 399 U. S., at 158-161. We do not think that a constitutional line drawn by the Confrontation Clause falls between a forgetful witness’ live testimony that he once believed this defendant to be the perpetrator of the crime, and the introduction of the witness’ earlier statement to that effect. Respondent has argued that this Court’s jurisprudence concerning suggestive identification procedures shows the special dangers of identification testimony, and the special importance of cross-examination when such hearsay is proffered. See, e. g., Manson v. Brathwaite, 432 U. S. 98 (1977); Neil v. Biggers, 409 U. S. 188 (1972). Respondent has not, however, argued that the identification procedure used here was in any way suggestive. There does not appear in our opinions, and we decline to adopt today, the principle that, because of the mere possibility of suggestive procedures, out-of-court statements of identification are inherently less reliable than other out-of-court statements. HH Respondent urges as an alternative basis for affirmance a violation of Federal Rule of Evidence 802, which generally excludes hearsay. Rule 801(d)(1)(C) defines as not hearsay a prior statement “of identification of a person made after perceiving the person,” if the declarant “testifies at the trial or hearing and is subject to cross-examination concerning the statement.” The Court of Appeals found that Foster’s identification statement did not come within this exclusion because his memory loss prevented his being “subject to cross-examination concerning the statement.” Although the Court of Appeals concluded that the violation of the Rules of Evidence was harmless (applying for purposes of that determination a “more-probable-than-not” standard, rather than the “beyond-a-reasonable-doubt” standard applicable to the Confrontation Clause violation, see Delaware v. Van Arsdall, 475 U. S., at 684), respondent argues to the contrary. It seems to us that the more natural reading of “subject to cross-examination concerning the statement” includes what was available here. Ordinarily a witness is regarded as “subject to cross-examination” when he is placed on the stand, under oath, and responds willingly to questions. Just as with the constitutional prohibition, limitations on the scope of examination by the trial court or assertions of privilege by the witness may undermine the process to such a degree that meaningful cross-examination within the intent of the Rule no longer exists. But that effect is not produced by the witness’ assertion of memory loss — which, as discussed earlier, is often the very result sought to be produced by cross-examination, and can be effective in destroying the force of the prior statement. Rule 801(d)(1)(C), which specifies that the cross-examination need only “concer[n] the statement,” does not on its face require more. This reading seems even more compelling when the Rule is compared with Rule 804(a)(3), which defines “[unavailability as a witness” to include situations in which a declarant “testifies to a lack of memory of the subject matter of the declarant’s statement.” Congress plainly was aware of the recurrent evidentiary problem at issue here — witness forgetfulness of an underlying event — but chose not to make it an exception to Rule 801(d)(1)(C). The reasons for that choice are apparent from the Advisory Committee’s Notes on Rule 801 and its legislative history. The premise for Rule 801(d)(1)(C) was that, given adequate safeguards against suggestiveness, out-of-court identifications were generally preferable to courtroom identifications. Advisory Committee’s Notes on Rule 801, 28 U. S. C. App., p. 717. Thus, despite the traditional view that such statements were hearsay, the Advisory Committee believed that their use was to be fostered rather than discouraged. Similarly, the House Report on the Rule noted that since, “[a]s time goes by, a witness’ memory will fade and his identification will become less reliable,” minimizing the barriers to admission of more contemporaneous identification is fairer to defendants and prevents “cases falling through because the witness can no longer recall the identity of the person he saw commit the crime.” H. R. Rep. No. 94-355, p. 3 (1975). See also S. Rep. No. 94-199, p. 2 (1975). To judge from the House and Senate Reports, Rule 801(d)(1)(C) was in part directed to the very problem here at issue: a memory loss that makes it impossible for the witness to provide an in-court identification or testify about details of the events underlying an earlier identification. Respondent argues that this reading is impermissible because it creates an internal inconsistency in the Rules, since the forgetful witness who is deemed “subject to cross-examination” under 801(d)(1)(C) is simultaneously deemed “unavailable” under 804(a)(3). This is the position espoused by a prominent commentary on the Rules, see 4 J. Weinstein & M. Berger, Weinstein’s Evidence 801-120 to 801-121, 801-178 (1987). It seems to us, however, that this is not a substantive inconsistency, but only a semantic oddity resulting from the fact that Rule 804(a) has for convenience of reference in Rule 804(b) chosen to describe the circumstances necessary in order to admit certain categories of hearsay testimony under the rubric “Unavailability as a witness.” These circumstances include not only absence from the hearing, but also claims of privilege, refusals to obey a court’s order to testify, and inability to testify based on physical or mental illness or memory loss. Had the rubric instead been “unavailability as a witness, memory loss, and other special circumstances” there would be no apparent inconsistency with Rule 801, which is a definition section excluding certain statements entirely from the category of “hearsay.” The semantic inconsistency exists not only with respect to Rule 801(d)(1)(C), but also with respect to the other subparagraphs of Rule 801(d)(1). It would seem strange, for example, to assert that a witness can avoid introduction of testimony from a prior proceeding that is inconsistent with his trial testimony, see Rule 801(d)(1)(A), by simply asserting lack of memory of the facts to which the prior testimony related. See United States v. Murphy, 696 F. 2d 282, 283-284 (CA4 1982), cert. denied, 461 U. S. 945 (1983). But that situation, like this one, presents the verbal curiosity that the witness is “subject to cross-examination” under Rule 801 while at the same time “unavailable” under Rule 804(a)(3). Quite obviously, the two characterizations are made for two entirely different purposes and there is no requirement or expectation that they should coincide. For the reasons stated, we hold that neither the Confrontation Clause nor Federal Rule of Evidence 802 is violated by admission of an identification statement of a witness who is unable, because of a memory loss, to testify concerning the basis for the identification. The decision of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. So ordered. Justice Kennedy took no part in the consideration or decision of this case. This case has been argued, both here and below, as though Federal Rule of Evidence 801(d)(1)(C) were the basis of the challenge. That is substantially but not technically correct. If respondent’s arguments are accepted, it is Rule 802 that would render the out-of-court statement inadmissible as hearsay; but as explained in Part III, it is ultimately Rule 801(d)(1)(C) that determines whether Rule 802 is applicable. On remand, the California Supreme Court concluded that the Confrontation Clause was not violated by the out-of-court statement, because the declarant testified under oath, subject to cross-examination, and the jury was able to observe his demeanor. People v. Green, 3 Cal. 3d 981, 479 P. 2d 998, cert. dism’d, 404 U. S. 801 (1971). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Kennedy delivered the opinion of the Court. Vermont law restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors. Vt. Stat. Ann., Tit. 18, §4631 (Supp. 2010). Subject to certain exceptions, the information may not be sold, disclosed by pharmacies for marketing purposes, or used for marketing by pharmaceutical manufacturers. Vermont argues that its prohibitions safeguard medical privacy and diminish the likelihood that marketing will lead to prescription decisions not in the best interests of patients or the State. It can be assumed that these interests are significant. Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment. As a consequence, Vermont’s statute must be subjected to heightened judicial scrutiny. The law cannot satisfy that standard. I A Pharmaceutical manufacturers promote their drugs to doctors through a process called “detailing.” This often involves a scheduled visit to a doctor’s office to persuade the doctor to prescribe a particular pharmaceutical. Detailers bring drug samples as well as medical studies that explain the “details” and potential advantages of various prescription drugs. Interested physicians listen, ask questions, and receive followup data. Salespersons can be more effective when they know the background and purchasing preferences of their clientele, and pharmaceutical salespersons are no exception. Knowledge of a physician’s prescription practices — called “prescriber-identifying information” — enables a detailer better to ascertain which doctors are likely to be interested in a particular drug and how best to present a particular sales message. Detailing is an expensive undertaking, so pharmaceutical companies most often use it to promote high-profit brand-name drugs protected by patent. Once a brand-name drug’s patent expires, less expensive bioequivalent generic alternatives are manufactured and sold. Pharmacies, as a matter of business routine and federal law, receive prescriber-identifying information when processing prescriptions. See 21 U. S. C. § 353(b); see also Vt. Bd. of Pharmacy Admin. Rule 9.1 (2009); Rule 9.2. Many pharmacies sell this information to “data miners,” firms that analyze prescriber-identifying information and produce reports on prescriber behavior. Data miners lease these reports to pharmaceutical manufacturers subject to nondisclosure agreements. Detailers, who represent the manufacturers, then use the reports to refine their marketing tactics and increase sales. In 2007, Vermont enacted the Prescription Confidentiality Law. The measure is also referred to as Act 80. It has several components. The central provision of the present case is § 4631(d). “A health insurer, a self-insured employer, an electronic transmission intermediary, a pharmacy, or other similar entity shall not sell, license, or exchange for value regulated records containing prescriber-identifiable information, nor permit the use of regulated records containing prescriber-identifiable information for marketing or promoting a prescription drug, unless the prescriber consents.... Pharmaceutical manufacturers and pharmaceutical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents....” The quoted provision has three component parts. The provision begins by prohibiting pharmacies, health insurers, and similar entities from selling prescriber-identifying information, absent the prescriber’s consent. The parties here dispute whether this clause applies to all sales or only to sales for marketing. The provision then goes on to prohibit pharmacies, health insurers, and similar entities from allowing prescriber-identifying information to be used for marketing, unless the prescriber consents. This prohibition in effect bars pharmacies from disclosing the information for marketing purposes. Finally, the provision’s second sentence bars pharmaceutical manufacturers and pharmaceutical marketers from using prescriber-identifying information for marketing, again absent the prescriber’s consent. The Vermont attorney general may pursue civil remedies against violators. § 4631(f). Separate statutory provisions elaborate the scope of the prohibitions set out in § 4631(d). “Marketing” is defined to include “advertising, promotion, or any activity” that is “used to influence sales or the market share of a prescription drug.” § 4631(b)(5). Section 4631(c)(1) further provides that Vermont’s Department of Health must allow “a prescriber to give consent for his or her identifying information to be used for the purposes” identified in § 4631(d). Finally, the Act’s prohibitions on sale, disclosure, and use are subject to a list of exceptions. For example, prescriber-identifying information may be disseminated or used for “health care research”; to enforce “compliance” with health insurance formularies or preferred drug lists; for “care management educational communications provided to” patients on such matters as “treatment options”; for law enforcement operations; and for purposes “otherwise provided by law.” § 4631(e). Act 80 also authorized funds for an “evidence-based prescription drug education program” designed to provide doctors and others with “information and education on the therapeutic and cost-effective utilization of prescription drugs.” § 4622(a)(1). An express aim of the program is to advise prescribers “about commonly used brand-name drugs for which the patent has expired” or will soon expire. § 4622(a)(2). Similar efforts to promote the use of generic pharmaceuticals are sometimes referred to as “counter-detailing.” App. 211; see also IMS Health Inc. v. Ayotte, 550 F. 3d 42, 91 (CA1 2008) (Lipez, J., concurring and dissenting). The counterdetailer’s recommended substitute may be an older, less expensive drug and not a bioequivalent of the brand-name drug the physician might otherwise prescribe. Like the pharmaceutical manufacturers whose efforts they hope to resist, counterdetailers in some States use prescriber-identifying information to increase their effectiveness. States themselves may supply the prescriber-identifying information used in these programs. See App. 313; id., at 375 (“[W]e use the data given to us by the State of Pennsylvania... to figure out which physicians to talk to”); see also id., at 427-429 (Director of the Office of Vermont Health Access explaining that the office collects prescriber-identifying information but “does not at this point in time have a counterdetailing or detailing effort”). As first enacted, Act 80 also required detailers to provide information about alternative treatment options. The Vermont Legislature, however, later repealed that provision. 2008 Vt. Laws No. 89, § 3. Act 80 was accompanied by legislative findings. 2007 Vt. Laws No. 80, §1. Vermont found, for example, that the “goals of marketing programs are often in conflict with the goals of the state” and that the “marketplace for ideas on medicine safety and effectiveness is frequently one-sided in that brand-name companies invest in expensive pharmaceutical marketing campaigns to doctors.” §§ 1(3), (4). Detailing, in the legislature’s view, caused doctors to make decisions based on “incomplete and biased information.” §1(4). Because they “are unable to take the time to research the quickly changing pharmaceutical market,” Vermont doctors “rely on information provided by pharmaceutical representatives.” §1(13). The legislature further found that detailing increases the cost of health care and health insurance, §1(15); encourages hasty and excessive'reliance on brand-name drugs, before the profession has observed their effectiveness as compared with older and less expensive generic alternatives, §1(7); and fosters disruptive and repeated marketing visits tantamount to harassment, §§ l(27)-(28). The legislative findings further noted that use of prescriber-identifying information “increase^] the effect of detailing programs” by allowing detailers to target their visits to particular doctors. §§ l(23)-(26). Use of prescriber-identifying data also helps detailers shape their messages by “tailoring” their “presentations to individual prescriber styles, preferences, and attitudes.” § 1(25). B The present ease involves two consolidated suits. One was brought by three Vermont data miners, the other by an association of pharmaceutical manufacturers that produce ■brand-name drugs. These entities are the respondents here. Contending that § 4631(d) violates their First Amendment rights as incorporated by the Fourteenth Amendment, respondents sought declaratory and injunctive relief against petitioners, the Attorney General and other officials of the State of Vermont. After a bench trial, the United States District Court for the District of Vermont denied relief. 631 F. Supp. 2d 434 (2009). The District Court found that “[pjharmaceutical manufacturers are essentially the only paying customers of the data vendor industry” and that, because detailing unpat-ented generic drugs is not “cost-effective,” pharmaceutical sales representatives “detail only branded drugs.” Id., at 451, 442. As the District Court further concluded, “the Legislature’s determination that [prescriber-identifying] data is an effective marketing tool that enables detailers to increase sales of new drugs is supported in the record.” Id., at 451. The United States Court of Appeals for the Second Circuit reversed and remanded. It held that § 4631(d) violates the First Amendment by burdening the speech of pharmaceutical marketers and data miners without an adequate justification. 630 F. 3d 263 (2010). Judge Livingston dissented. The decision of the Second Circuit is in conflict with decisions of the United States Court of Appeals for the First Circuit concerning similar legislation enacted by Maine and New Hampshire. See IMS Health Inc. v. Mills, 616 F. 3d 7 (CA1 2010) (Maine); Ayotte, supra (New Hampshire). Recognizing a division of authority regarding the constitutionality of state statutes, this Court granted certiorari. 562 U. S. 1127 (2011). II The beginning point is the text of § 4631(d). In the proceedings below, Vermont stated that the first sentence of § 4631(d) prohibits pharmacies and other regulated entities from selling or disseminating prescriber-identifying information for marketing. The information, in other words, could be sold or given away for purposes other than marketing. The District Court and the Court of Appeals accepted the State’s reading. See 630 F. 3d, at 276. At oral argument in this Court, however, the State for the first time advanced an alternative reading of § 4631(d) — namely, that pharmacies, health insurers, and similar entities may not sell prescriber-identifying information for any purpose, subject to the statutory exceptions set out at § 4631(e). See Tr. of Oral Arg. 19-20. It might be argued that the State’s newfound interpretation comes too late in the day. See Sprietsma v. Mercury Marine, 537 U. S. 51, 56, n. 4 (2002) (waiver); New Hampshire v. Maine, 532 U. S. 742, 749 (2001) (judicial estop-pel). Respondents, the District Court, and the Court of Appeals were entitled to rely on the State’s plausible interpretation of the law it is charged with enforcing. For the State to change its position is particularly troubling in a First Amendment case, where plaintiffs have a special interest in obtaining a prompt adjudication of their rights, despite potential ambiguities of state law. See Houston v. Hill, 482 U. S. 451, 467-468, and n. 17 (1987); Zwickler v. Koota, 389 U. S. 241, 252 (1967). In any event, § 4631(d) cannot be sustained even under the interpretation the State now adopts. As a consequence this Court can assume that the opening clause of § 4631(d) prohibits pharmacies, health insurers, and similar entities from selling prescriber-identifying information, subject to the statutory exceptions set out at § 4631(e). Under that reading, pharmacies may sell the information to private or academic researchers, see § 4631(e)(1), but not, for example, to pharmaceutical marketers. There is no dispute as to the remainder of § 4631(d). It prohibits pharmacies, health insurers, and similar entities from disclosing or otherwise allowing prescriber-identifying information to be used for marketing. And it bars pharmaceutical manufacturers and detailers from using the information for marketing. The questions now are whether § 4631(d) must be tested by heightened judicial scrutiny and, if so, whether the State can justify the law A 1 On its face, Vermont’s law enacts content- and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information. The provision first forbids sale subject to exceptions based in large part on the content of a purchaser’s speech. For example, those who wish to engage in certain “educational communications,” § 4681(e)(4), may purchase the information. The measure then bars any disclosure when recipient speakers will use the information for marketing. Finally, the provision’s second sentence prohibits pharmaceutical manufacturers from using the information for marketing. The statute thus disfavors marketing, that is, speech with a particular content. More than that, the statute disfavors specific speakers, namely pharmaceutical manufacturers. As a result of these content- and speaker-based rules, detailers cannot obtain prescriber-identifying information, even though the information may be purchased or acquired by other speakers with diverse purposes and viewpoints. Detailers are likewise barred from using the information for marketing, even though the information may be used by a wide range of other speakers. For example, it appears that Vermont could supply academic organizations with prescriber-identifying information to use in countering the messages of brand-name pharmaceutical manufacturers and in promoting the prescription of generic drugs. But § 4631(d) leaves detail-ers no means of purchasing, acquiring, or using prescriber-identifying information. The law on its face burdens disfavored speech by disfavored speakers. Any doubt that § 4631(d) imposes an aimed, content-based burden on detailers is dispelled by the record and by formal legislative findings. As the District Court noted, “[p]har-maceutical manufacturers are essentially the only paying customers of the data vendor industry”; and the almost invariable rule is that detailing by pharmaceutical manufacturers is in support of brand-name drugs. 631 F. Supp. 2d, at 451. Vermont’s law thus has the effect of preventing detail-ers — and only detailers — from communicating with physicians in an effective and informative manner. Cf. Edenfield v. Fane, 507 U. S. 761, 766 (1993) (explaining the “considerable value” of in-person solicitation). Formal legislative findings accompanying § 4631(d) confirm that the law’s express purpose and practical effect are to diminish the effectiveness of marketing by manufacturers of brand-name drugs. Just as the “inevitable effect of a statute on its face may render it unconstitutional,” a statute’s stated purposes may also be considered. United States v. O’Brien, 391 U. S. 367, 384 (1968). Here, the Vermont Legislature explained that detailers, in particular those who promote brand-name drugs, convey messages that “are often in conflict with the goals of the state.” 2007 Vt. Laws No. 80, § 1(3). The legislature designed § 4631(d) to target those speakers and their messages for disfavored treatment. “In its practical operation,” Vermont’s law “goes even beyond mere content discrimination, to actual viewpoint discrimination.” R. A. V. v. St. Paul, 505 U. S. 377, 391 (1992). Given the legislature’s expressed statement of purpose, it is apparent that § 4631(d) imposes burdens that are based on the content of speech and that are aimed at a particular viewpoint. Act 80 is designed to impose a specific, content-based burden on protected expression. It follows that heightened judicial scrutiny is warranted. See Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 418 (1993) (applying heightened scrutiny to “a categorical prohibition on the use of newsracks to disseminate commercial messages”); id., at 429 (“[TJhe very basis for the regulation is the difference in content between ordinary newspapers and commercial speech” in the form of “commercial handbills.... Thus, by any commonsense understanding of the term, the ban in this case is ‘content based’” (some internal quotation marks omitted)); see also Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 658 (1994) (explaining that strict scrutiny applies to regulations reflecting “aversion” to what “disfavored speakers” have to say). The Court has recognized that the “distinction between laws burdening and laws banning speech is but a matter of degree” and that the “Government’s content-based burdens must satisfy the same rigorous scrutiny as its content-based bans.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 812 (2000). Lawmakers may no more silence unwanted speech by burdening its utterance than by censoring its content. See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 115 (1991) (content-based financial burden); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575 (1983) (speaker-based financial burden). The First Amendment requires heightened scrutiny whenever the government creates “a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989); see also Renton v. Playtime Theatres, Inc., 475 U. S. 41, 48 (1986) (explaining that “'content-neutral’ speech regulations” are “those that are justified without reference to the content of the regulated speech” (internal quotation marks omitted)). A government bent on frustrating an impending demonstration might pass a law demanding two years’ notice before the issuance of parade permits. Even if the hypothetical measure on its face appeared neutral as to content and speaker, its purpose to suppress speech and its unjustified burdens on expression would render it unconstitutional. Ibid. Commercial speech is no exception. See Discovery Network, supra, at 429-430 (commercial speech restriction lacking a “neutral justification” was not content neutral). A “consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue.” Bates v. State Bar of Ariz., 433 U. S. 350, 364 (1977). That reality has great relevance in the fields of medicine and public health, where information can save lives. 2 The State argues that heightened judicial scrutiny is unwarranted because its law is a mere commercial regulation. It is true that restrictions on protected expression are distinct from restrictions on economic activity or, more generally, on nonexpressive conduct. It is also true that the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech. That is why a ban on race-based hiring may require employers to remove “‘White Applicants Only’” signs, Rumsfeld v. Forum for Academic arid Institutional Rights, Inc., 547 U. S. 47, 62 (2006); why “an ordinance against outdoor fires” might forbid “burning a flag,” R. A. V., supra, at 385; and why antitrust laws can prohibit “agreements in restraint of trade,” Gihoney v. Empire Storage & Ice Co., 886 U. S. 490, 502 (1949). But § 4631(d) imposes more than an incidental burden on protected expression. Both on its face and in its practical operation, Vermont’s law imposes a burden based on the content of speech and the identity of the speaker. See supra, at 563-565. While the burdened speech results from an economic motive, so too does a great deal of vital expression. See Bigelow v. Virginia, 421 U. S. 809, 818 (1975); New York Times Co. v. Sullivan, 376 U. S. 254, 266 (1964); see also United States v. United Foods, Inc., 533 U. S. 405, 410-411 (2001) (applying “First Amendment scrutiny” where speech effects were not incidental and noting that “those whose business and livelihood depend in some way upon the product involved no doubt deem First Amendment protection to be just as important for them as it is for other discrete, little noticed groups”). Vermont’s law does not simply have an effect on speech, but is directed at. certain content and is aimed at particular speakers. The Constitution “does not enact Mr. Herbert Spencer’s Social Statics.” Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting). It does enact the First Amendment. Vermont further argues that § 4631(d) regulates not speech but simply access to information. Prescriber-identifying information was generated in compliance with a legal mandate, the State argues, and so could be considered a kind of governmental information. This argument finds some support in Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32 (1999), where the Court held that a plaintiff could not raise a facial challenge to a content-based restriction on access to government-held information. Because no private party faced a threat of legal punishment, the Court characterized the law at issue as “nothing more than a governmental denial of access to information in its possession.” Id., at 40. Under those circumstances the special reasons for permitting First Amendment plaintiffs to invoke the rights of others did not apply. Id., at 38-39. Having found that the plaintiff could not raise a facial challenge, the Court remanded for consideration of an as-applied challenge. Id., at 41. United Reporting is thus a case about the availability of facial challenges. The Court did not rule on the merits of any First Amendment claim. United Reporting is distinguishable in at least two respects. First, Vermont has imposed a restriction on access to information in private hands. This confronts the Court with a point reserved, and a situation not addressed, in United Reporting. Here, unlike in United Reporting, we do have “a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses.” Id., at 40. The difference is significant. An individual’s right to speak is implicated when information he or she possesses is subjected to “restraints on the way in which the information might be used” or disseminated. Seattle Times Co. v. Rhinehart, 467 U. S. 20, 32 (1984); see also Bartnicki v. Vopper, 532 U. S. 514, 527 (2001); Florida Star v. B. J. F., 491 U. S. 524 (1989); New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam). In Seattle Times, this Court applied heightened judicial scrutiny before sustaining a trial court order prohibiting a newspaper’s disclosure of information it learned through coercive discovery. It is true that respondents here, unlike the newspaper in Seattle Times, do not themselves possess information whose disclosure has been curtailed. That information, however, is in the hands of pharmacies and other private entities. There is no question that the “threat of prosecution... hangs over their heads.” United Reporting, 528 U. S., at 41. For that reason United Reporting does not bar respondents’ facial challenge. United Reporting is distinguishable for a second and even more important reason. The plaintiff in United Reporting had neither “attempted] to qualify” for access to the government’s information nor presented an as-applied claim in this Court. Id., at 40. As a result, the Court assumed that the plaintiff had not suffered a personal First Amendment injury and could prevail only by invoking the rights of others through a facial challenge. Here, by contrast, respondents claim — with good reason — that § 4631(d) burdens their own speech. That argument finds support in the separate writings in United Reporting, which were joined by eight Justices. All of those writings recognized that restrictions on the disclosure of government-held information can facilitate or burden the expression of potential recipients and so transgress the First Amendment. See id., at 42 (Scalia, J., concurring) (suggesting that “a restriction upon access that allows access to the press..., but at the same time denies access to persons who wish to use the information for certain speech purposes, is in reality a restriction upon speech”); id., at 43 (Ginsburg, J., concurring) (noting that “the provision of [government] information is a kind of subsidy to people who wish to speak” about certain subjects, “and once a State decides to make such a benefit available to the public, there are no doubt limits to its freedom to decide how that benefit will be distributed”); id., at 46 (Stevens, J., dissenting) (concluding that, “because the State’s discrimination is based on its desire to prevent the information from being used for constitutionally protected purposes, [i]t must assume the burden of justifying its conduct”). Vermont’s law imposes a content- and speaker-based burden on respondents’ own speech. That consideration provides a separate basis for distinguishing United Reporting and requires heightened judicial scrutiny. The State also contends that heightened judicial scrutiny is unwarranted in this case because sales, transfer, and use of prescriber-identifying information are conduct, not speech. Consistent with that submission, the United States Court of Appeals for the First Circuit has characterized prescriber-identifying information as a mere “commodity” with no greater entitlement to First Amendment protection than “beef jerky.” Ayotte, 550 F. 3d, at 52-53. In contrast the courts below concluded that a prohibition on the sale of prescriber-identifying information is a content-based rule akin to a ban on the sale of cookbooks, laboratory results, or train schedules. See 630 F. 3d, at 271-272 (“The First Amendment protects even dry information, devoid of advocacy, political relevance, or artistic expression” (internal quotation marks and brackets omitted)); 631 F. Supp. 2d, at 446 (“A restriction on disclosure is a regulation of speech, and the ‘sale’ of [information] is simply disclosure for profit”). This Court has held that the creation and dissemination of information are speech within the meaning of the First Amendment. See, e. g., Bartnicki, supra, at 527 (“[I]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct” (some internal quotation marks omitted)); Rubin v. Coors Brewing Co., 514 U. S. 476, 481 (1995) (“information on beer labels” is speech); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 759 (1985) (plurality opinion) (credit report is “speech”). Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs. There is thus a strong argument that prescriber-identifying information is speech for First Amendment purposes. The State asks for an exception to the rule that information is speech, but there is no need to consider that request in this case. The State has imposed content- and speaker-based restrictions on the availability and use of prescriber-identifying information. So long as they do not engage in marketing, many speakers can obtain and use the information. But detailers cannot. Vermont’s statute could be compared with a law prohibiting trade magazines from purchasing or using ink. Cf. Minneapolis Star, 460 U. S. 575. Like that hypothetical law, § 4631(d) imposes a speaker- and content-based burden on protected expression, and that circumstance is sufficient to justify application of heightened scrutiny. As a consequence, thiG eaoc can be resolved even assuming, as the State argues, that preseriber-identifying information is a mere commodity. B In the ordinary case it is all but dispositive to conclude that a law is content based and, in practice, viewpoint discriminatory. See R. A. V., 505 U. S., at 382 (“Content-based regulations are presumptively invalid”); id., at 391-392. The State argues that a different analysis applies here because, assuming § 4631(d) burdens speech at all, it at most burdens only commercial speech. As in previous cases, however, the outcome is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied. See, o. g., Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S. 173, 184 (1999). For the same reason there is no need to determine whether all speech hampered by § 4631(d) is commercial, as our cases have used that term. Cf. Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 474 (1989) (discussing whether “pure speech and commercial speech” were inextricably intertwined, so that “the entirety must... be classified as noncommercial”). Tinder a commercial speech inquiry, it is the State’s burden to justify its content-based law as consistent with the First Amendment. Thompson v. Western States Medical Center, 535 U. S. 357, 373 (2002). To sustain the targeted, content-based burden § 4631(d) imposes on protected expression, the State must show at least that the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest. See Fox, supra, at 480-481; Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 566 (1980). There must be a “fit between the legislature’s ends and the means chosen to accomplish those ends.” Fox, supra, at 480 (internal quotation marks omitted). As in other contexts, these standards ensure not only that the State’s interests are proportional to the resulting burdens placed on speech but also that the law does not seek to suppress a disfavored message. See Turner Broadcasting, 512 U. S., at 662-663. The State’s asserted justifications for § 4631(d) come under two general headings. First, the State contends that its law is necessary to protect medical privacy, including physician confidentiality, avoidance of harassment, and the integrity of the doctor-patient relationship. Second, the State argues that § 4631(d) is integral to the achievement of policy objectives — namely, improved public health and reduced healthcare costs. Neither justification withstands scrutiny. 1 Vermont argues that its physicians have a “reasonable expectation” that their preseriber-identifying information “will not be used for purposes other than... filling and processing” prescriptions. See 2007 Vt. Laws No. 80, § 1(29). It may be assumed that, for many reasons, physicians have an interest in keeping their prescription decisions confidential. But § 4631(d) is not drawn to serve that interest. Under Vermont's law, pharmacies may share preseriber-identifying information with anyone for any reason save one: They must not allow the information to be used for marketing. Exceptions further allow pharmacies to sell preseriber-identifying information for certain purposes, including “health care research.” § 4631(e). And.< the.measure permits insurers, researchers, journalists, the State itself, and others to use the information. See § 4631(d); cf. App. 370-372; id., at 211. A1 but conceding that § 4631(d) does not in itself advance confidentiality interests, the State suggests that other laws might impose separate bars on the disclosure of prescriber-identifying information. See Vt. Bd. of Pharmacy Admin. Rule 20.1. But the potential effectiveness of other measures cannot justify the distinctive set of prohibitions and sanctions imposed by § 4631(d). Perhaps the State could have addressed physician confidentiality through “a more coherent policy.” Greater New Orleans Broadcasting, supra, at 195; see also Discovery Network, 507 U. S., at 428. For instance, the State might have advanced its asserted privacy interest by allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances. See, e. g., Health Insurance Portability and Accountability Act of 1996, 42 U. S. C. § 1320d-2; 45 CFR pts. 160 and 164 (2010). A statute of that type would present quite a different ease from the one presented here. But the State did not enact a statute with that purpose or design. Instead, Vermont made prescriber-identifying information available to an almost limitless audience. The explicit structure of the statute allows the information to be studied and used by all but a narrow class of disfavored speakers. Given the information’s widespread availability and many permissible uses, the State’s asserted interest in physician confidentiality does not justify the burden that § 4631(d) places on protected expression. The State points out that it allows doctors to forgo the advantages of § 4631(d) by consenting to the sale, disclosure, and use of their preseriber-identifying information. See § 4631(c)(1). It is true that private decisionmaking can avoid governmental partiality and thus insulate privacy measures from First Amendment challenge. See Rowan v. Post Office Dept., 397 U. S. 728 (1970); cf. Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 72 (1983). But that principle is inap-posite here. Vermont has given its doctors a contrived choice: Either consent, which will allow your prescriber-identifying information to be disseminated and used without constraint; or, withhold consent, which will allow your information to be used by those speakers whose message the State supports. Section 4631(d) may offer a limited degree of privacy, but only on terms favorable to the speech the State prefers. Cf. Rowan, supra, at 734, 737, 739, n. 6 (sustaining a law that allowed private parties to make “unfettered,” “unlimited,” and “unreviewable” choices regarding their own privacy). This is not to say that all privacy measures must avoid content-based rules. Here, however, the State has conditioned privacy on acceptance of a content-based rule that is not drawn to serve the State’s asserted interest. To obtain the limited privacy allowed by § 4631(d), Vermont physicians are forced to acquiesce in the State’s goal of burdening disfavored speech by disfavored speakers. Respondents suggest that a further defect of § 4631(d) lies in its presumption of applicability absent a physician’s election to the contrary. Vermont’s law might burden less speech if it came into operation only after an individual choice, but a revision to that effect would not necessarily save § 4631(d). Even reliance on a prior election would not suffice, for instance, if available categories of coverage by design favored speakers of one political persuasion over another. Rules that burden protected expression may not be sustained when the options provided by the State are too narrow to advance Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

C

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Marshall delivered the opinion of the Court. In this cause we are asked to determine whether strikes by Operating Engineers at the site, of the construction of a nuclear power generator plant at Oyster Creek, New Jersey, violated § 8 (b) (4) (B) of the National Labor Relations Act. Although the National Labor Relations Board, found the strikes to be in violation of this section, the Court of Appeals refused to enforce the Board’s order. We believe the Court of Appeals construed the Act too narrowly. Accordingly, we reverse and remand the case for consideration of the propriety of the Board’s order. The general contractor for the project, Burns & Roe, Inc., subcontracted all of the construction work to three companies — White Construction Co., Chicago Bridge & Iron Co., and Poirier & McLane Corp. All three employed operating engineers who were members of Local 825, International Union of Operating Engineers. But White, unlike Chicago Bridge and Poirier, did not have a collective-bargaining agreement with Local 825. In the latter part of September 1965, White installed an electric welding machine and assigned the job of pushing the buttons that operated the machine to members of the Ironworkers Union, who were to perform the actual welding. Upon learning of this work assignment, Local 825’s job steward and its lead engineer threatened White with a strike if operating engineers were not given the work. White, however, refused to meet the demand. On September 29, 1965, the job steward and lead engineer met with the construction manager for Burns, the general contractor. They informed him that the members of Local 825 working at the jobsite had voted to strike unless Burns signed a contract, which would be binding on all three subcontractors as well as Burns, giving Local 825 jurisdiction over all power equipment, including electric welding machines, operated on the job-site. On October 1, after White and Burns refused to accede to the demands, the operating engineers employed by Chicago Bridge and Poirier as well as those employed by White walked off the job. They stayed out from 8 a. m, to 1 p. m., returning to work when negotiations over their demands started. On October 6, Burns submitted the work assignment dispute to the National Joint Board for the Settlement of Jurisdictional Disputes for the Construction Industry. The shme day, Local 825 threatened Burns and all the subcontractors with another work stoppage unless the contracts were signed and the work transferred to the operating engineers. The employers again refused, and the operating engineers walked off the project. This stride lasted from October 7 to October 11. On October 20, the Joint Board notified the parties • that there was no reason to change the assignment of the. disputed, work. Local 825 did not accept this resolution; and when the welding machine was started on "November 4, the operating engineers surrounded the machine and physically prevented its operation. On November 8, the NLRB Regional Director obtained from the United States District Court a temporary injunction under § 10 (l) of the Act restraining the union from coercing a cessation of business on the project or to compel White to change the work assignment. An unfair labor practice proceeding against Local 825 subsequently ensued. The Board found.that the union had violated §8 (b)(4)(D) of the Act by inducing employees of White, Chicago Bridge, and Poirier to strike to force White to take the disputed work away from the Ironworkers and assign it to the Operating Engineers. The Court of Appeals’ approval of this finding is not questioned here. But the Board’s finding that Local 825’s encouragement of the Chicago Bridge and Poirier employees to strike and the union’s coercion of Burns violated § 8 (b) (4) (B) of the Act. was not approved by the Court of Appeals and is in issue here. I Congressional concern over the involvement of third parties in labor disputes not their own prompted § 8 (b) (4)(B). This concern was focused on the “secondary boycott,” which was conceived of as pressure brought to bear, not “upon the employer who alone is a party [to a dispute], but upon some third party who has no concern in it” with the objective of forcing the third party to bring pressure on the employer to agree to the union’s demands. Section 8 (b) (4)(B) is, however, the product of legislative compromise and also reflects a concern with protecting labor organizations’ right to exert legitimate pressure aimed at the employer with whom there is a primary dispute. This primary activity is protected even though it may seriously affect neutral third parties. Steelworkers (Carrier Corp.) v. NLRB, 376 U. S. 492, 502 (1964); Electrical Workers (General Electric) v. NLRB, 366 U. S. 667, 673 (1961). Thus there are two threads to § 8 (b) (4) (B) that require disputed conduct to be classified as either “primary” or “secondary.” And the tapestry that has been woven in classifying such conduct is among the labor law’s most intricate. See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369 (1969). But here the normally difficult task of classifying union conduct is easy. As the Court of Appeals said, the “record amply justifies the conclusion that [Burns and the neutral subcontractors] were subjected to coercion in the form of threats or walkouts, or both.” 410 F. 2d, at 9. And, as the Board said, it is clear that this coercion was designed “to achieve the assignment of [the] disputed work” to operating engineers. 162 N. L. R. B. 1617, 1621. Local 825’s coercive activity was aimed directly at Burns and the subcontractors that were not involved in the dispute. The union engaged in a strike against these neutral employers for the specific, overt purpose of forcing them to put pressure on White to assign the job of operating the welding machine to operating engineers. Local 825 was not attempting to apply the full force of primary action by directing its efforts at all phases of Burns’ normal operation as was the case in Steelworkers (Carrier) v. NLRB, 376 U. S. 492 (1964), and Electrical Workers (General Electric) v. NLRB, 366 U. S. 667 (1961). It was instead using a sort of pressure that was unmistakably and flagrantly secondary. NLRB v. Denver Building & Construction Trades Council, 341 U. S. 675 (1951). The more difficult task is to determine whether one of Local 825’s objectives was to force Burns and the other neutrals to “cease doing business” with White as § 8 (b)(4)(B) requires. The Court of Appeals concluded that the union’s objective was to force Burns “to use its influence with the subcontractor to change the subcontractor’s conduct, not to terminate their relationship” and. that this was not enough. 410 F. 2d, at 10. That court read the statute as requiring that the union demand nothing short of a complete termination of the business relationship between the neutral and the primary employer. Such a reading is too narrow. Some disruption of business relationships is the necessary consequence of the purest form of primary activity. These foreseeable disruptions are, however, clearly protected. Steelworkers (Carrier), 376 U. S., at 496; Electrical Workers (General Electric), 366 U. S., at 682. Likewise, secondary activity could have such a limited goal and the foreseeable result of the conduct could be, while disruptive, so slight that the “cease doing business” requirement is not met. Local 825’s goal was not so limited nor were the foreseeable Consequences of its secondary pressure slight. The operating engineers sought to force Burns to bind all the subcontractors on the project to a particular form of job assignments. The clear implication of the demands was that Burns would be required either to force a change in White’s policy or to terminate White’s contract. The strikes shut down the whole project. If Burns was unable to obtain White’s consent, Local 825 was apparently willing to continue disruptive conduct that would bring all the employers to their knees. Certainly, the union would have preferred to have the employers capitulate to its demands; it wanted to take the job of operating the welding machines away from the Ironworkers. It was willing, however, to try to obtain this capitulation by forcing neutrals to compel White to meet union demands, To hold that this flagrant secondary conduct with these most serious disruptive effects was not prohibited by § 8 (b) (4) (B) would be largely to ignore the original congressional concern. NLRB v. Carpenters Dist. Council, 407 F. 2d 804, 806 (CA5 1969). II In addition to its argument that § 8 (b) (4) (B) does not cover its conduct, Local 825 argues that § 8. (b)(4)(D) provides’the exclusive remedy. Clearly, § 8 (b) (4) (D) is, as the Board and Court of Appeals held, applicable. But that section is aimed at protecting “the employer trapped between the ¡ . . claims” of rival unions. National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612, 625 (1967). Although § 8(b)(4) (D) also applies to neutrals, the basic purpose is different from that of §8 (b)(4)(B). The practices her'e were, unfair under both sections and there is no inaication that Congress intended either section to have exclusive application. III Since the Court of Appeals did not believe that § 8 (b) (4) (B) was applicable, it did not consider the propriety of the portion of the Board’s order relating to that section. But the order was not narrowly confined to the conduct;involved here; so we must remand these cases for the Court of Appeals to. consider whether the order is necessary to further the. goals of the Act. See Communications Workers v. NLRB, 362 U. S. 479 (1960); NLRB v. Express Publishing Co., 312 U. S. 426 (1941). Reversed and remanded. See. 8 (b) “It shall be an unfair labor practice for a labor organization or its agents— “(4)(i) to engage in, or to induce or encourage, any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise, handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either ease an object thereof is— “(B) forcing or requiring any person, to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to-recognize or bargain with a labor organization as the representative of his employees unless such. labor, organization has been certified as the representative. of such employees under the provisions of section 9: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing . . . 61 Stat. 141, as amended, 73 Stat. 542, 29 17. S. C. § 158 (b) (4) (B). 410 F. 2d 5. The proposed contract provided in part:’ “This Agreement shall bind all sub-contractors while working for an Employer who is a party to this Agreement. Any Employer who sublets any of his work must sublet the same subject to all •the terms and conditions of this Agreement. “The Employer. agrees that he will not subcontract any of his work, which is covered by the terms of this Collective Bargaining Agreement, to any subcontractor, unless said subcontractor agrees in writing to perform said work subject to all terms and conditions of this Agreement between the Employer and the Union, including an agreement to submit work jurisdictional disputes for determination as provided below.” A private organization that arbitrates jurisdictional disputes in the construction industry. 29 U. S. C. § 160 (l). The Operating Engineer’s activity did not stop with the issuance of the injunction. White’s engineers struck again on November 17, this time ostensibly over a dispute concerning the number of employees assigned to operate a recently installed electrical pump. Local 825 representatives in a discussion with White said; however, that this walkout was more or less because of the electric welding machine being in operation.” The strike lasted until December 21. Of course the activity like that on November" 4 did not involve § 8 (b) (4) (B) violations since only the engineers working for White were involved." Sec. 8 (b)’ “It shall be an unfair labor practice for a labor organization or its agents— “(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise, handle or work on any goods, articles, materials, or commodities or to perform any. services; or (ii) .to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is— “(D) -forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing, to conform to an order or certification of the Board determining the bargaining representative for employees performing such work . . . .” 29 U. S. C. § 158 (b)(4)(D). See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369, 386-390 (1969); National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612, 624 (1967). Electrical Workers, Local 501 v. NLRB, 181 F. 2d 34, 37 (CA2 1950), aff’d, 341 U. S. 694 (1951). The House Conference Report explained this idea: “Thus it was made an unfair labor practice for a union to engage in a strike against employer A for the purpose of forcing that employer to cease doing business with employer B. Similarly it would not be lawful for á unión to boycott employer A because employer A uses or otherwise deals in the goods of, or does business with, employer B.” H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 43 (1947). The section contains a specific proviso, which was added by the 1959 amendment to the Act, that protects a “primary strike or primary picketing”- that is “not otherwise unlawful.” See n. 1, supra. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

G

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Stevens delivered the opinion of the Court. The collective-bargaining agreements between the parties provide for voluntary grievance procedures and reserve the parties’ respective rights to resort to economic weapons when the procedures fail to resolve a dispute. The collective-bargaining agreements are silent as to judicial remedies. The question presented is whether, upon failure of the grievance procedures, such contracts should be construed to bar recourse to the courts under § 301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U. S. C. § 185. We granted certiorari to resolve a conflict in the Circuits, 494 U. S. 1026 (1990), and we now conclude that the judicial remedy under § 301 is available to petitioners. r-H Two almost identical collective-bargaining agreements (CBA’s) between respondent Ring Screw Works (company) and the union prohibit discharges except for “just cause.” Petitioners Groves and Evans contend that they were discharged in violation of this provision. Both CBA’s provide that the parties will make “an earnest effort” to settle every dispute that may arise under the agreement. App. 16. Both CBA’s also contain a voluntary multistep grievance procedure, but neither includes a requirement that the parties submit disputes to binding arbitration. The CBA’s prohibit strikes or lockouts until the grievance machinery has been exhausted. The no-strike clause provides: “The Union will not cause or permit its members to cause, nor will any member of the Union take part in any strike, either sit-down, stay-in or any other kind of strike, or other interference, or any other stoppage, total or partial, of production at the Company’s plant during the terms of this agreement until all negotiations have failed through the grievance procedure set forth herein. Neither will the Company engage in any lockout until the same grievance procedure has been carried out.” Id., at 34 (emphasis added); see id., at 69. The dispute in this case arose out of the company’s decision to discharge petitioners. With the assistance of the union, petitioners invoked the grievance procedures, but without success. At the end of the procedures, the company decided not to call for arbitration, and the union decided not to exercise its right to strike. Instead, petitioners filed this action invoking federal jurisdiction under § 301, 29 U. S. C. §185. Following the Sixth Circuit’s decision in Fortune v. National Twist Drill & Tool Division, Lear Siegler, Inc., 684 F. 2d 374 (1982), the District Court granted the company’s motion for summary judgment and the Court of Appeals affirmed. 882 F. 2d 1081 (1989). The Sixth Circuit explained: “We believe that the CBA’s in question do bring about an inference that a strike, or other job action, is the perceived remedy for failure of successful resolution of a grievance absent agreed arbitration. Such resolution, by work ‘stoppage or other interference’ is not a happy solution from a societal standpoint of an industrial dispute, particularly as it relates to the claim of a single employee that he has been wrongfully discharged. Were we deciding the issue with a clean slate, we might be disposed to adopt the rationale of Dickeson [v. DAW Forest Products Co.], 827 F. 2d 627 [(CA9 1987)].” 882 F. 2d, at 1086. r-H 1 — I Section 301(a) of the LMRA provides a federal remedy for breach of a collective-bargaining agreement. We have squarely held that § 301 authorizes “suits by and against individual employees as well as between unions and employers,” including actions against an employer for wrongful discharge. Hines v. Anchor Motor Freight, Inc., 424 U. S. 554, 562 (1976). Our opinion in Hines described the strong federal policy favoring judicial enforcement of collective-bargaining agreements. We wrote: “Section 301 of the Labor Management Relations Act . . . reflects the interest of Congress in promoting ‘a higher degree of responsibility upon the parties to such agreements . . . . ’ S. Rep. No. 105, 80th Cong., 1st Sess., 17 (1947). The strong policy favoring judicial enforcement of collective-bargaining contracts was sufficiently powerful to sustain the jurisdiction of the district courts over enforcement suits even though the conduct involved was arguably or would amount to an unfair labor practice within the jurisdiction of the National Labor Relations Board. Smith v. Evening News Assn., 371 U. S. 195 (1962); Atkinson v. Sinclair Rfg. Co., 370 U. S. 238 (1962); Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962); Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962). Section 301 contemplates suits by and against individual employees as well as between unions and employers; and contrary to earlier indications §301 suits encompass those seeking to vindicate ‘uniquely personal’ rights of employees such as wages, hours, overtime pay, and wrongful discharge. Smith v. Evening News Assn., supra, at 198-200. Petitioners’ present suit against the employer was for wrongful discharge and is the kind of case Congress provided for in §301.” Id., at 561-562. Thus, under §301, as in other areas of the law, there is a strong presumption that favors access to a neutral forum for the peaceful resolution of disputes. The company correctly points out, however, that a presumption favoring access to a judicial forum is overcome whenever the parties have agreed upon a different method for the adjustment of their disputes. The company argues that the union has agreed that if the voluntary mediation process is unsuccessful, then the exclusive remedy that remains is either a strike or a lockout, depending on which party asserts the breach of contract. According to this view, the dispute is not whether there was “just cause” for the discharge of Groves and Evans, but whether the union has enough muscle to compel the company to rehire them even if there was just cause for their discharge. In our view, the statute’s reference to “the desirable method for settlement of grievance disputes,” see n. 10, supra, refers to the peaceful resolution of disputes over the application or meaning of the collective-bargaining agreement. Of course, the parties may expressly agree to resort to economic warfare rather than to mediation, arbitration, or judicial review, but the statute surely does not favor such an agreement. For in most situations a strike or a lockout, though it may be a method of ending the impasse, is not a method of resolving the merits of the dispute over the application or meaning of the contract. Rather, it is simply a method by which one party imposes its will upon its adversary. Such a method is the antithesis of the peaceful methods of dispute resolution envisaged by Congress when it passed the LMRA. In Associated, General Contractors of Illinois v. Illinois Conference of Teamsters, 486 F. 2d 972 (1973), the United States Court of Appeals for the Seventh Circuit was confronted with the same issue presented by this case, albeit with the union, rather than the employer, claiming that the contractual provision foreclosed judicial relief. The Seventh Circuit, in response to the union’s argument that the CBA’s terms provided that deadlocked grievances would be resolved by economic sanctions without resort to the courts, wrote: “Unquestionably ‘the means chosen by the parties for settlement of their differences under a collective bargaining agreement [must be] given full play.’ See United Steelworkers of America v. American Mfg. Co., 363 U. S. 564, 566 [(I960)]. But it is one thing to hold that an arbitration clause in a contract agreed to by the parties is enforceable. It is quite a different matter to construe a contract provision reserving the Union’s right to resort to ‘economic recourse’ as an agreement to divest the courts of jurisdiction to resolve whatever dispute may arise. This we decline to do. “In our first opinion in this case we noted that the parties had not agreed to compulsory arbitration and that the Union had expressly reserved the right to ‘economic recourse’ in the event of a deadlock. We therefore held that the . . . right to strike was protected by the Norris-LaGuardia Act. However, we did not, and do not now, construe the agreement as requiring economic warfare as the exclusive or even as a desirable method for settling deadlocked grievances. The plain language of the statute protects the right to strike, but there is no plain language in the contract compelling the parties to use force instead of reason in resolving their differences. In our view, an agreement to forbid any judicial participation in the resolution of important disputes would have to be written much more clearly than this.” Id., at 976 (footnote omitted). This reasoning applies equally to cases in which the union, an employee, or the employer is the party invoking judicial relief. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Compare Fortune v. National Twist Drill & Tool Division, Lear Siegler, Inc., 684 F. 2d 374 (CA6 1982), and Haynes v. United States Pipe and Foundry Co., 362 F. 2d 414 (CA5 1966), with Associated General Contractors of Illinois v. Illinois Conference of Teamsters, 486 F. 2d 972 (CA7 1973); Dickeson v. DAW Forest Products Co., 827 F. 2d 627 (CA9 1987); United Brotherhood of Carpenters & Joiners of America v. Hensel Phelps Construction Co., 376 F. 2d 731 (CA10), cert. denied, 389 U. S. 952 (1967), and Breish v. Ring Screw Works, 397 Mich. 586, 248 N. W. 2d 526 (1976). Local 771, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), is one of the three petitioners and serves as collective-bargaining agent for the two employee petitioners, Arthur Groves and Bobby J. Evans. Thus, one CBA provides, in part: “Section 1. Should a difference arise between the Company and the Union or its members employed by the Company, as to the meaning and application of the provisions of the agreement, an earnest effort will be made to settle it as follows: “Step 1. Between the employee, his steward and the foreman of his department. If a satisfactory settlement is not reached, then “Step 2. Between the Shop Committee, with or without the employee, and the Company management. If a satisfactory settlement is not reached, then “Step 3. The Shop Committee and/or the Company may call the local Union president and/or the International representative to arrange a meeting in an attempt to resolve the grievance. If a satisfactory settlement is not reached, then “Step 4. The Shop Committee and the Company may call in an outside representative to assist in settling the difficulty. This may include arbitration by mutual agreement in discharge cases only.” App. 16-17. One of the CBA’s contained the following provision: “Unresolved grievance (except arbitration decisions) shall be handled as set forth in Article XVI, Section 7.” Id., at 53. The referenced provision is the no-strike clause. There has been no claim at any stage of this litigation that this provision justifies a different interpretation of the two otherwise almost identical CBA’s. The company terminated petitioner Groves for allegedly excessive, unexcused absences and dismissed petitioner Evans for allegedly falsifying company records. There is no dispute that the grievance procedures were properly followed and that the union fairly represented petitioners. In Evans’ case, a strike vote was taken by the unit members at the plant at which he worked, but the issue did not receive the required two-thirds majority; in Groves’ case, a strike vote was never taken. The Sixth Circuit relied on its reasoning in Fortune, as restated in subsequent opinions: “ ‘This circuit has concluded, in essence that regardless of whether the contractual dispute resolution mechanism results in a ‘final and binding' decision, the existence of that mechanism will foreclose judicial review provided we find that it was intended to be exclusive. . . . “ While we may question the wisdom of foreclosing judicial review of contracts which fail to provide for either ‘final’ or ‘binding’ peaceful resolution via arbitration, since the absence of such a provision cannot be taken to infer that the union (and thereby its employees) gained anything in its contract negotiations as a result, it is nevertheless well established in this circuit that a panel of this court is bound by the prior decisions of another panel of the same issues.’ “Mochko v. Acme-Cleveland Corp., 826 F. 2d 1064 (6th Cir. 1987) (unpublished per curiam).” 882 F. 2d, at 1086. Given the panel’s expressed doubt about the correctness of the Circuit precedent that it was following, together with the fact that there was a square conflict in the Circuits, it might have been appropriate for the panel to request a rehearing en banc. Section 301(a) of the LMRA, 61 Stat. 156, provides: “(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” 29 U. S. C. § 185(a). Section 203(d) of the LMRA provides: “Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.” 29 U. S. C. § 173(d). As we explained in Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574 (1960): “The processing of disputes through the grievance machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement.” Id., at 581. Here, the parties’ dispute centers on the question whether there was just cause for the discharges. “If unions can break agreements with relative impunity, then such agreements do not tend to stabilize industrial relations. The execution of an agreement does not by itself promote industrial peace. The chief advantage which an employer can reasonably expect from a collective labor agreement is assurance of uninterrupted operation during the term of the agreement. Without some effective method of assuring freedom from economic warfare for the term of the agreement, there is little reason why an employer would desire to sign such a contract.” S. Rep. No. 105, 80th Cong., 1st Sess., p. 16 (1947). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

G

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Kennedy delivered the opinion of the Court. After it became apparent that two consecutive sentences had been imposed where state law permitted but one, a Missouri court vacated the shorter of the two and credited the time already served against the remaining sentence. At the time the court entered its order, the prisoner had completed serving the shorter sentence. The question presented is whether the longer sentence can remain in force, consistent with double jeopardy principles. I Respondent Larry Thomas attempted to rob a St. Louis, Missouri, auto parts store in 1972. Inside the store, respondent drew a gun and announced a holdup. One of the store’s customers was armed, and he tried to thwart the robbery. Respondent shot and killed him in an exchange of gunfire. Respondent was convicted in 1973 by a St. Louis Circuit Court jury both of attempted robbery and of first-degree felony murder for killing during the commission of a felony. The trial court sentenced respondent to consecutive terms of 15 years for the attempted robbery and life imprisonment for the felony murder, with the 15-year sentence to run first. The Missouri Court of Appeals affirmed respondent’s conviction on direct appeal. State v. Thomas, 522 S. W. 2d 74 (Mo. App. 1975). In 1977, respondent sought state postconviction relief, arguing that it was improper for the trial court to impose separate sentences for felony murder and the underlying felony. While respondent’s case was pending, the Missouri Supreme Court accepted this argument in unrelated cases, holding that the Missouri Legislature had not intended to allow separate punishments under the felony-murder statute. See State v. Morgan, 612 S. W. 2d 1 (1981) (en banc); State v. Olds, 603 S. W. 2d 601 (1980) (en banc). In June 1981, with respondent’s postconviction motion still pending, the Governor of Missouri commuted his 15-year sentence for attempted robbery to “a term ending June 16, 1981.” Respondent remained in prison under the murder sentence. In 1982, the state trial court vacated respondent’s attempted robbery conviction and 16-year sentence, holding under Olds, supra, that respondent could not be required to serve both sentences. The Missouri Court of Appeals affirmed the order vacating the sentence, but rejected respondent’s argument that he was entitled to immediate release. Respondent had argued that because he had completed the shorter, commuted sentence, his continued confinement under the longer sentence constituted double jeopardy. The Missouri Court noted that respondent was in no way prejudiced by the trial court’s ruling, as his entire time of incarceration was credited against the life sentence. Thomas v. State, 665 S. W. 2d 621 (1983). Respondent then sought a writ of habeas corpus in federal court. The United States District Court for the Eastern District of Missouri denied relief, holding that respondent had not suffered a double jeopardy violation because he had not been subjected to greater punishment than intended by the legislature. A three-judge panel of the Eighth Circuit reversed and remanded. 816 F. 2d 364 (1987). The majority opinion noted that as a result of the Governor’s commutation, respondent had legally satisfied the 15-year sentence. See State v. Cerny, 248 S. W. 2d 844 (Mo. 1952). It further held that under this Court’s decisions in Ex parte Lange, 18 Wall. 163 (1874), and In re Bradley, 318 U. S. 50 (1943), once respondent completed one of the two sentences that could have been imposed by law, he could not be required to serve any part of the other. The majority went on, however, to hold that the double jeopardy violation could be cured under this Court’s decision in Morris v. Mathews, 475 U. S. 237 (1986), which held that an unlawful conviction of both felony murder and the underlying felony could be remedied by re-sentencing on a lesser included offense of nonfelony murder. The panel therefore granted a conditional writ, so that respondent could be resentenced for the non-jeopardy-barred offense of nonfelony murder or released. Judge McMillian concurred in part and dissented in part. He agreed that respondent’s double jeopardy rights were violated, but stated that he would not allow resentencing because he preferred the analysis of Justice Brennan’s dissenting opinion in Mathews. 816 F. 2d, at 371. Judge Bowman dissented, concluding that the double jeopardy prohibition against multiple punishments was not violated because respondent would serve time only under the life sentence, which was a single valid punishment intended by the legislature. Judge Bowman joined Judge Hanson, however, in holding that respondent could be resentenced under Mathews. The Eighth Circuit granted rehearing en banc and ordered respondent’s unconditional release. 844 F. 2d 1337 (1988). The court held that under Lange, supra, and Bradley, supra, respondent could not be punished further once he had satisfied the sentence for attempted robbery. The court further held that Mathews, supra, was inapplicable because the prisoner in that case had not completed either of his sentences. Four judges dissented. We granted certiorari, 488 U. S. 1003 (1989), and now reverse. t-H l-H The Double Jeopardy Clause of the Fifth Amendment provides that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” The Clause affords three protections to the criminal defendant. The first two, which are the most familiar, protect against a second prosecution for the same offense after acquittal, and against a second prosecution for the same offense after conviction. See, e. g., Ohio v. Johnson, 467 U. S. 493, 498 (1984). Neither of these protections against successive prosecutions is involved here. Rather, respondent’s initial conviction and sentence for both felony murder and the underlying felony violated the third aspect of the Double Jeopardy Clause, the protection against “multiple punishments for the same offense” imposed in a single proceeding. See North Carolina v. Pearce, 395 U. S. 711, 717 (1969). The constitutional question in this case is what remedy is required to cure the admitted violation. The answer turns on the interest that the Double Jeopardy Clause seeks to protect. Our cases establish that in the multiple punishments context, that interest is “limited to ensuring that the total punishment did not exceed that authorized by the legislature.” United States v. Halper, 490 U. S. 435, 450 (1989); see Johnson, supra, at 499; Missouri v. Hunter, 459 U. S. 359, 366-367 (1983). The purpose is to ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments. See, e. g., Johnson, supra, at 499. In this case, respondent’s conviction of both felony murder and attempted robbery gave rise to a double jeopardy claim only because the Missouri Legislature did not intend to allow conviction and punishment for both felony murder and the underlying felony. E. g., Hunter, supra, at 368; see also Morgan, supra, at 1; Olds, supra, at 510 (construing Missouri statute). Given that, in its application to the case before us, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended,” Hunter, supra, at 366, the state-court remedy fully vindicated respondent’s double jeopardy rights. The Missouri court vacated the attempted robbery conviction and sentence and credited the time that respondent had served under that conviction against the remaining sentence for felony murder. This remedy of crediting time already served against the sentence that remained in place is consistent with our approach to multiple punishments problems in other contexts. See Pearce, supra, at 718-719 (credit for time served applied on resentencing at second trial following appeal). Respondent now stands convicted of felony murder alone, and his continued confinement under the single sentence imposed for that crime is not double jeopardy. Respondent, as did the Court of Appeals below, relies on this Court’s opinions in Lange, supra, and Bradley, supra, for the proposition that the Double Jeopardy Clause requires immediate release for the prisoner who has satisfied the shorter of two consecutive sentences that could not both lawfully be imposed. We think this approach depends on an overly broad reading of those precedents. Lange and Bradley do contain language to the effect that once a defendant “had fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone.” 18 Wall., at 176. But application of this language to the facts presented here is neither compelled by precedent nor supported by any double jeopardy principle. In Ex parte Lange, the defendant had been convicted of stealing mail bags, a federal offense punishable by either a $200 fine or a 1-year prison term. The trial court, however, sentenced Lange to a $200 fine and one year in prison. Lange paid the fine and spent five days in prison before seeking a writ of habeas corpus from the trial court. The trial judge then vacated the earlier judgment and sentenced Lange to one year’s imprisonment from that date. Lange sought a writ of habeas corpus in this Court, which held that he was entitled to be released. The Court noted that Lange’s fine had already passed into the Treasury and could not be returned to him. If the second sentence were enforced, Lange would therefore have paid a $200 fine and spent a year plus five days in prison. See id., at 175. This punishment would obviously have exceeded that authorized by the legislature. Lange therefore stands for the uncontested proposition that the Double Jeopardy Clause prohibits punishment in excess of that authorized by the legislature, see United States v. DiFrancesco, 449 U. S. 117, 139 (1980), and not for the broader rule suggested by its dictum. In re Bradley, 318 U. S. 50 (1943), provides a closer analogy to this case. The defendant in Bradley was sentenced for contempt to a $500 fine and six months’ imprisonment under a statute that provided only for fine or imprisonment. Bradley was taken to prison, and two days later paid the fine. The trial court then realized its mistake, amended its sentencing order by omitting the fine and retaining only the 6-month prison sentence, and instructed the Clerk to return the fine to Bradley’s attorney, who refused to accept it. This Court, in a brief opinion citing Lange, held that Bradley was entitled to be released, stating that where “one valid alternative provision of the original sentence has been satisfied, the petitioner is entitled to be freed of further restraint.” 318 U. S., at 52. Strict application of Bradley would support respondent here. Under this view, satisfaction of one of two alternatives that could lawfully be imposed (e. g., the fine in Bradley and the commuted sentence here) is dispositive, and any attempt to correct the erroneous sentence by repaying the fine or crediting time served would be futile. We think this approach ignores important differences between this case and Bradley. Bradley and Lange both involved alternative punishments that were prescribed by the legislature for a single criminal act. The issue presented here, however, involves separate sentences imposed for what the sentencing court thought to be separately punishable offenses, one far more serious than the other. The alternative sentences in Bradley, moreover, were of a different type, fine and imprisonment. While it would not have been possible to “credit” a fine against time in prison, crediting time served under one sentence against the term of another has long been an accepted practice. See, e. a., North Carolina v. Pearce, 395 U. S. 711 (1969). In a true alternative sentences case such as Bradley, it would be difficult to say that one punishment or the other was intended by the legislature, for the legislature viewed each alternative as appropriate for some cases. But here the legislature plainly intended one of two results for persons who committed murder in the commission of a felony: Either they were to be convicted of felony murder, or they were to be convicted separately of the felony and of nonfelony murder. It cannot be suggested seriously that the legislature intended an attempted robbery conviction to suffice as an alternative sanction for murder. The suggestion of Justice Scalia’s dissent, that the same analysis of legislative intent applies to the $200 fine imposed in Lange, post, at 390, is difficult to understand. By the terms of the statute itself, the legislature in Lange plainly did intend that in some cases the sentencing judge would impose “a mere $200 fine for the gravity of offense at issue there.” Ibid. Justice Scalia observes that the Double Jeopardy Clause protects not only against punishment in excess of legislative intent, but also against additions to a sentence in a subsequent proceeding that upset a defendant’s legitimate expectation of finality. Post, at 393-394. But this case does not present the situation posited by the dissent where a judge imposes only a 15-year sentence under a statute that permitted 15 years to life, has second thoughts after the defendant serves the sentence, and calls him back to impose another 10 years. Post, at 392. Here we must determine whether the resentencing of respondent was indeed the imposition of an additional sentence, or a valid remedy for improper “cumulative sentences imposed in a single trial.” Hunter, 459 U. S., at 366. There can be no doubt it was the latter. Justice Scalia’s discussion of the defendant’s expectation of finality makes no independent contribution to the inquiry, for in the end the dissent’s argument boils down to Bradley. Respondent plainly had no expectation of serving only an attempted robbery sentence when he was convicted by the Missouri trial court. Indeed, since Morgan and Olds had not been decided when respondent was sentenced, his expectation at that point was to serve both consecutive sentences. Once it was established that Missouri law would not allow imposition of both sentences, respondent had an expectation in serving “either 15 years (on the one sentence) or life (on the other sentence).” Post, at 395. The dissent rejects our conclusion that the Missouri court’s remedy fulfilled that expectation as “ruled out by Bradley.” Ibid. But as discussed above, we do not think the law compels application of Bradley beyond its facts. Instead, we believe that the intent of the legislature, which this aspect of the Double Jeopardy Clause serves to protect, provides the standard for evaluating the Missouri court’s remedy for the Clause’s violation. Extension of Bradley to these facts would also lead to anomalous results. Under respondent’s theory, for example, everything depends on the order in which the consecutive sentences were originally imposed. Had respondent' been sentenced to the life sentence first, he would be serving the very same term, but could advance no double jeopardy claim. There is no indication that the order of the sentences was of the slightest importance to the sentencing judge, and there is no reason constitutional adjudication should turn on such fortuities. Respondent also concedes that where concurrent sentences are imposed, unlawful imposition of two sentences may be cured by vacating the shorter of the two sentences even where it has been completed. See Hardy v. United States, 292 F. 2d 192 (CA8 1961); United States v. Leather, 271 F. 2d 80 (CA7 1959), cert. denied, 363 U. S. 831 (1960). Ironically, respondent’s argument for immediate release thus depends on the fact that he was given consecutive terms, which are typically reserved for more culpable offenders. We have previously observed that “[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” Bozza v. United States, 330 U. S. 160, 166-167 (1947). We will not depart from that principle today, and we decline to extend Bradley beyond its facts. H I — I I — I Double jeopardy is an area of the law filled with technical rules, and the protections it affords defendants might at times be perceived as technicalities. This is irrelevant where the ancient and important principles embodied in the Double Jeopardy Clause are implicated. “Violations of the Double Jeopardy Clause are no less serious than violations of other constitutional protections.” Mathews, 475 U. S., at 255 (Blackmun, J., concurring in judgment). But neither the Double Jeopardy Clause nor any other constitutional provision exists to provide unjustified windfalls. The Missouri court’s alteration of respondent’s sentence to a single term for felony murder with credit for time served provided suitable protection of his double jeopardy rights. The decision of the Court of Appeals is reversed, and the case is remanded for dismissal of respondent’s petition. It is so ordered. After the Missouri Supreme Court decided Morgan and Olds, the Missouri Legislature amended the felony murder statute. The statute now provides that punishment may be imposed for both felony murder (now defined as second-degree murder) and the underlying felony. See Mo. Rev. Stat. § 565.021(2) (1986). Even if the Double Jeopardy Clause provided an absolute bar to multiple punishments in a single trial regardless of legislative intent, see Missouri v. Hunter, 459 U. S. 359, 369 (1983) (Marshall, J., dissenting), the fact would remain that respondent is now serving only a single sentence for a single offense. Under any view of the substantive content of the double jeopardy bar against multiple punishments, respondent has had every benefit the Clause affords. The Court of Appeals’ conclusion that the state court could not cure the double jeopardy violation through the alternative procedure approved in Moms v. Mathews, 475 U. S. 237 (1986), is therefore difficult to understand. In Matheios, we held that a violation of the double jeopardy rule against multiple punishments for the same offense in successive trials could be cured by resentencing to a lesser included offense that was not jeopardy barred. In that case, Mathews was first convicted of aggravated robbery. In a separate trial, he was then convicted of felony murder based on the robbery. The second conviction violated the Double Jeopardy Clause. See, e. g., Harris v. Oklahoma, 433 U. S. 682 (1977) (per curiam) (successive prosecutions for felony murder and the underlying felony a double jeopardy violation). Yet Mathews’ conviction of felony murder necessarily entailed a jury finding that he was guilty of the lesser included offense of nonfelony murder. Because nonfelony murder is not the “same offense” as aggravated robbery, there was no double jeopardy bar to a successive prosecution for that offense. We therefore held that the violation could be cured by resentencing respondent for nonfelony murder, unless Mathews could show prejudice from the admission of evidence on the felony-murder charge that would not have been admissible as to nonfelony murder, in which case he would be entitled to a new trial. The Court of Appeals concluded that Mathews was not applicable to this case because the prisoner in Mathews had not completed his sentence for robbery prior to the resentencing for nonfelony murder, while here Thomas satisfied the attempted robbery sentence. 844 F. 2d 1337, 1342 (CA8 1988). This distinction has no legal significance. Because nonfelony murder is not the same offense as attempted robbery, see, e. g., Block-burger v. United States, 284 U. S. 299 (1932) (defining “same offense”), there would be no double jeopardy bar to punishing Thomas for that offense, even through a second full trial. The rule of Morris v. Mathews merely allows entry of judgment without the need for a new trial where the jury’s verdict of guilt as to felony murder in the first trial necessarily included a determination that the defendant committed nonfelony murder. Under the Missouri felony-murder statute that applied to Thomas, the jury did make this determination, and there is no reason that Mathews could not have applied here if the state court had chosen that course. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Chief Justice ROBERTS delivered the opinion of the Court. Section 284 of the Patent Act provides that, in a case of infringement, courts "may increase the damages up to three times the amount found or assessed." 35 U.S.C. § 284. In In re Seagate Technology, LLC, 497 F.3d 1360 (2007) (en banc), the United States Court of Appeals for the Federal Circuit adopted a two-part test for determining when a district court may increase damages pursuant to § 284. Under Seagate, a patent owner must first "show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent." Id., at 1371. Second, the patentee must demonstrate, again by clear and convincing evidence, that the risk of infringement "was either known or so obvious that it should have been known to the accused infringer." Ibid. The question before us is whether this test is consistent with § 284. We hold that it is not. I A Enhanced damages are as old as U.S. patent law. The Patent Act of 1793 mandated treble damages in any successful infringement suit. See Patent Act of 1793, § 5, 1 Stat. 322. In the Patent Act of 1836, however, Congress changed course and made enhanced damages discretionary, specifying that "it shall be in the power of the court to render judgment for any sum above the amount found by [the] verdict... not exceeding three times the amount thereof, according to the circumstances of the case." Patent Act of 1836, § 14, 5 Stat. 123. In construing that new provision, this Court explained that the change was prompted by the "injustice" of subjecting a "defendant who acted in ignorance or good faith" to the same treatment as the "wanton and malicious pirate." Seymour v. McCormick, 16 How. 480, 488, 14 L.Ed. 1024 (1854). There "is no good reason," we observed, "why taking a man's property in an invention should be trebly punished, while the measure of damages as to other property is single and actual damages." Id., at 488-489. But "where the injury is wanton or malicious, a jury may inflict vindictive or exemplary damages, not to recompense the plaintiff, but to punish the defendant." Id., at 489. The Court followed the same approach in other decisions applying the 1836 Act, finding enhanced damages appropriate, for instance, "where the wrong [had] been done, under aggravated circumstances," Dean v. Mason, 20 How. 198, 203, 15 L.Ed. 876 (1858), but not where the defendant "appeared in truth to be ignorant of the existence of the patent right, and did not intend any infringement," Hogg v. Emerson, 11 How. 587, 607, 13 L.Ed. 824 (1850). See also Livingston v. Woodworth, 15 How. 546, 560, 14 L.Ed. 809 (1854) ("no ground" to inflict "penalty" where infringers were not "wanton"). In 1870, Congress amended the Patent Act, but preserved district court discretion to award up to treble damages "according to the circumstances of the case." Patent Act of 1870, § 59, 16 Stat. 207. We continued to describe enhanced damages as "vindictive or punitive," which the court may "inflict" when "the circumstances of the case appear to require it." Tilghman v. Proctor, 125 U.S. 136, 143-144, 8 S.Ct. 894, 31 L.Ed. 664 (1888) ; Topliff v. Topliff, 145 U.S. 156, 174, 12 S.Ct. 825, 36 L.Ed. 658 (1892) (infringer knowingly sold copied technology of his former employer). At the same time, we reiterated that there was no basis for increased damages where "[t]here is no pretence of any wanton and wilful breach" and "nothing that suggests punitive damages, or that shows wherein the defendant was damnified other than by the loss of the profits which the plaintiff received." Cincinnati Siemens-Lungren Gas Illuminating Co. v. Western Siemens-Lungren Co., 152 U.S. 200, 204, 14 S.Ct. 523, 38 L.Ed. 411 (1894). Courts of Appeals likewise characterized enhanced damages as justified where the infringer acted deliberately or willfully, see, e.g., Baseball Display Co. v. Star Ballplayer Co., 35 F.2d 1, 3-4 (C.A.3 1929) (increased damages award appropriate "because of the deliberate and willful infringement"); Power Specialty Co. v. Connecticut Light & Power Co., 80 F.2d 874, 878 (C.A.2 1936) ("wanton, deliberate, and willful" infringement); Brown Bag Filling Mach. Co. v. Drohen, 175 F. 576, 577 (C.A.2 1910) ("a bald case of piracy"), but not where the infringement "was not wanton and deliberate," Rockwood v. General Fire Extinguisher Co., 37 F.2d 62, 66 (C.A.2 1930), or "conscious and deliberate," Goodyear Tire & Rubber Co. v. Overman Cushion Tire Co., 95 F.2d 978, 986 (C.A.6 1938). Some early decisions did suggest that enhanced damages might serve to compensate patentees as well as to punish infringers. See, e.g., Clark v. Wooster, 119 U.S. 322, 326, 7 S.Ct. 217, 30 L.Ed. 392 (1886) (noting that "[t]here may be damages beyond" licensing fees "but these are more properly the subjects" of enhanced damage awards). Such statements, however, were not for the ages, in part because the merger of law and equity removed certain procedural obstacles to full compensation absent enhancement. See generally 7 Chisum on Patents § 20.03[4][b][iii], pp. 20-343 to 20-344 (2011). In the main, moreover, the references to compensation concerned costs attendant to litigation. See Clark, 119 U.S., at 326, 7 S.Ct. 217 (identifying enhanced damages as compensation for "the expense and trouble the plaintiff has been put to"); Day v. Woodworth, 13 How. 363, 372, 14 L.Ed. 181 (1852) (enhanced damages appropriate when defendant was "stubbornly litigious" or "caused unnecessary expense and trouble to the plaintiff"); Teese v. Huntingdon, 23 How. 2, 8-9, 16 L.Ed. 479 (1860) (discussing enhanced damages in the context of "counsel fees"). That concern dissipated with the enactment in 1952 of 35 U.S.C. § 285, which authorized district courts to award reasonable attorney's fees to prevailing parties in "exceptional cases" under the Patent Act. See Octane Fitness, LLC v. ICON Health & Fitness Inc., 572 U.S. ----, ----, 134 S.Ct. 1749, 1755, 188 L.Ed.2d 816 (2014). It is against this backdrop that Congress, in the 1952 codification of the Patent Act, enacted § 284. "The stated purpose" of the 1952 revision "was merely reorganization in language to clarify the statement of the statutes." Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 505, n. 20, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964) (internal quotation marks omitted). This Court accordingly described § 284 -consistent with the history of enhanced damages under the Patent Act-as providing that "punitive or 'increased' damages" could be recovered "in a case of willful or bad-faith infringement." Id., at 508, 84 S.Ct. 1526 ; see also Dowling v. United States, 473 U.S. 207, 227, n. 19, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985) ( "willful infringement"); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, 648, n. 11, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999) (describing § 284 damages as "punitive"). B In 2007, the Federal Circuit decided Seagate and fashioned the test for enhanced damages now before us. Under Seagate, a plaintiff seeking enhanced damages must show that the infringement of his patent was "willful." 497 F.3d, at 1368. The Federal Circuit announced a two-part test to establish such willfulness: First, "a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent," without regard to "[t]he state of mind of the accused infringer." Id., at 1371. This objectively defined risk is to be "determined by the record developed in the infringement proceedings." Ibid. "Objective recklessness will not be found" at this first step if the accused infringer, during the infringement proceedings, "raise[s] a'substantial question' as to the validity or noninfringement of the patent." Bard Peripheral Vascular, Inc. v. W.L. Gore & Assoc., Inc., 776 F.3d 837, 844 (C.A.Fed.2015). That categorical bar applies even if the defendant was unaware of the arguable defense when he acted. See Seagate, 497 F.3d, at 1371 ; Spine Solutions, Inc. v. Medtronic Sofamor Danek USA, Inc., 620 F.3d 1305, 1319 (C.A.Fed.2010). Second, after establishing objective recklessness, a patentee must show-again by clear and convincing evidence-that the risk of infringement "was either known or so obvious that it should have been known to the accused infringer." Seagate, 497 F.3d, at 1371. Only when both steps have been satisfied can the district court proceed to consider whether to exercise its discretion to award enhanced damages. Ibid. Under Federal Circuit precedent, an award of enhanced damages is subject to trifurcated appellate review. The first step of Seagate -objective recklessness-is reviewed de novo ; the second-subjective knowledge-for substantial evidence; and the ultimate decision-whether to award enhanced damages-for abuse of discretion. See Bard Peripheral Vascular, Inc. v. W.L. Gore & Assoc., Inc., 682 F.3d 1003, 1005, 1008 (C.A.Fed.2012) ; Spectralytics, Inc. v. Cordis Corp., 649 F.3d 1336, 1347 (C.A.Fed.2011). C 1 Petitioner Halo Electronics, Inc., and respondents Pulse Electronics, Inc., and Pulse Electronics Corporation (collectively, Pulse) supply electronic components. 769 F.3d 1371, 1374-1375 (C.A.Fed.2014). Halo alleges that Pulse infringed its patents for electronic packages containing transformers designed to be mounted to the surface of circuit boards. Id., at 1374. In 2002, Halo sent Pulse two letters offering to license Halo's patents. Id., at 1376. After one of its engineers concluded that Halo's patents were invalid, Pulse continued to sell the allegedly infringing products. Ibid. In 2007, Halo sued Pulse. Ibid. The jury found that Pulse had infringed Halo's patents, and that there was a high probability it had done so willfully. Ibid. The District Court, however, declined to award enhanced damages under § 284, after determining that Pulse had at trial presented a defense that "was not objectively baseless, or a'sham.' " App. to Pet. for Cert. in No. 14-1513, p. 64a (quoting Bard, 682 F.3d, at 1007 ). Thus, the court concluded, Halo had failed to show objective recklessness under the first step of Seagate. App. to Pet. for Cert. in No. 14-1513, at 65a. The Federal Circuit affirmed. 769 F.3d 1371 (2014). 2 Petitioners Stryker Corporation, Stryker Puerto Rico, Ltd., and Stryker Sales Corporation (collectively, Stryker) and respondents Zimmer, Inc., and Zimmer Surgical, Inc. (collectively, Zimmer), compete in the market for orthopedic pulsed lavage devices. App. to Pet. for Cert. in No. 14-1520, p. 49a. A pulsed lavage device is a combination spray gun and suction tube, used to clean tissue during surgery. Ibid. In 2010, Stryker sued Zimmer for patent infringement. 782 F.3d 649, 653 (C.A.Fed.2015). The jury found that Zimmer had willfully infringed Stryker's patents and awarded Stryker $70 million in lost profits. Ibid. The District Court added $6.1 million in supplemental damages and then trebled the total sum under § 284, resulting in an award of over $228 million. App. in No. 14-1520, pp. 483-484. Specifically, the District Court noted, the jury had heard testimony that Zimmer had "all-but instructed its design team to copy Stryker's products," App. to Pet. for Cert. in No. 14-1520, at 77a, and had chosen a "high-risk/high-reward strategy of competing immediately and aggressively in the pulsed lavage market," while "opt[ing] to worry about the potential legal consequences later," id., at 52a. "[T]reble damages [were] appropriate," the District Court concluded, "[g]iven the one-sidedness of the case and the flagrancy and scope of Zimmer's infringement." Id., at 119a. The Federal Circuit affirmed the judgment of infringement but vacated the award of treble damages. 782 F.3d, at 662. Applying de novo review, the court concluded that enhanced damages were unavailable because Zimmer had asserted "reasonable defenses" at trial. Id., at 661-662. We granted certiorari in both cases, 577 U.S. ----, 136 S.Ct. 356, 193 L.Ed.2d 289 (2015), and now vacate and remand. II A The pertinent text of § 284 provides simply that "the court may increase the damages up to three times the amount found or assessed." 35 U.S.C. § 284. That language contains no explicit limit or condition, and we have emphasized that the "word'may' clearly connotes discretion." Martin v. Franklin Capital Corp., 546 U.S. 132, 136, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005) (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 533, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) ). At the same time, "[d]iscretion is not whim." Martin, 546 U.S., at 139, 126 S.Ct. 704. "[I]n a system of laws discretion is rarely without limits," even when the statute "does not specify any limits upon the district courts' discretion." Flight Attendants v. Zipes, 491 U.S. 754, 758, 109 S.Ct. 2732, 105 L.Ed.2d 639 (1989). "[A] motion to a court's discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles." Martin, 546 U.S., at 139, 126 S.Ct. 704 (quoting United States v. Burr, 25 F.Cas. 30, 35 (No. 14,692d) (C.C.D.Va.1807) (Marshall, C.J.); alteration omitted). Thus, although there is "no precise rule or formula" for awarding damages under § 284, a district court's "discretion should be exercised in light of the considerations" underlying the grant of that discretion. Octane Fitness, 572 U.S., at ----, 134 S.Ct., at 1756 (quoting Fogerty, 510 U.S., at 534, 114 S.Ct. 1023 ). Awards of enhanced damages under the Patent Act over the past 180 years establish that they are not to be meted out in a typical infringement case, but are instead designed as a "punitive" or "vindictive" sanction for egregious infringement behavior. The sort of conduct warranting enhanced damages has been variously described in our cases as willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or-indeed-characteristic of a pirate. See supra, at 1928 - 1930. District courts enjoy discretion in deciding whether to award enhanced damages, and in what amount. But through nearly two centuries of discretionary awards and review by appellate tribunals, "the channel of discretion ha[s] narrowed," Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 772 (1982), so that such damages are generally reserved for egregious cases of culpable behavior. B The Seagate test reflects, in many respects, a sound recognition that enhanced damages are generally appropriate under § 284 only in egregious cases. That test, however, "is unduly rigid, and it impermissibly encumbers the statutory grant of discretion to district courts." Octane Fitness, 572 U.S., at ----, 134 S.Ct., at 1755 (construing § 285 of the Patent Act). In particular, it can have the effect of insulating some of the worst patent infringers from any liability for enhanced damages. 1 The principal problem with Seagate's two-part test is that it requires a finding of objective recklessness in every case before district courts may award enhanced damages. Such a threshold requirement excludes from discretionary punishment many of the most culpable offenders, such as the "wanton and malicious pirate" who intentionally infringes another's patent-with no doubts about its validity or any notion of a defense-for no purpose other than to steal the patentee's business. Seymour, 16 How., at 488. Under Seagate, a district court may not even consider enhanced damages for such a pirate, unless the court first determines that his infringement was "objectively" reckless. In the context of such deliberate wrongdoing, however, it is not clear why an independent showing of objective recklessness-by clear and convincing evidence, no less-should be a prerequisite to enhanced damages. Our recent decision in Octane Fitness arose in a different context but points in the same direction. In that case we considered § 285 of the Patent Act, which allows district courts to award attorney's fees to prevailing parties in "exceptional" cases. 35 U.S.C. § 285. The Federal Circuit had adopted a two-part test for determining when a case qualified as exceptional, requiring that the claim asserted be both objectively baseless and brought in subjective bad faith. We rejected that test on the ground that a case presenting "subjective bad faith" alone could "sufficiently set itself apart from mine-run cases to warrant a fee award." 572 U.S., at ----, 134 S.Ct., at 1757. So too here. The subjective willfulness of a patent infringer, intentional or knowing, may warrant enhanced damages, without regard to whether his infringement was objectively reckless. The Seagate test aggravates the problem by making dispositive the ability of the infringer to muster a reasonable (even though unsuccessful) defense at the infringement trial. The existence of such a defense insulates the infringer from enhanced damages, even if he did not act on the basis of the defense or was even aware of it. Under that standard, someone who plunders a patent-infringing it without any reason to suppose his conduct is arguably defensible-can nevertheless escape any comeuppance under § 284 solely on the strength of his attorney's ingenuity. But culpability is generally measured against the knowledge of the actor at the time of the challenged conduct. See generally Restatement (Second) of Torts § 8A (1965) ("intent" denotes state of mind in which "the actor desires to cause consequences of his act" or "believes" them to be "substantially certain to result from it"); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 34, p. 212 (5th ed. 1984) (describing willful, wanton, and reckless as "look[ing] to the actor's real or supposed state of mind"); see also Kolstad v. American Dental Assn., 527 U.S. 526, 538, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999) ("Most often... eligibility for punitive awards is characterized in terms of a defendant's motive or intent"). In Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007), we stated that a person is reckless if he acts "knowing or having reason to know of facts which would lead a reasonable man to realize" his actions are unreasonably risky. Id., at 69, 127 S.Ct. 2201 (emphasis added and internal quotation marks omitted). The Court found that the defendant had not recklessly violated the Fair Credit Reporting Act because the defendant's interpretation had "a foundation in the statutory text" and the defendant lacked "the benefit of guidance from the courts of appeals or the Federal Trade Commission" that "might have warned it away from the view it took." Id., at 69-70, 127 S.Ct. 2201. Nothing in Safeco suggests that we should look to facts that the defendant neither knew nor had reason to know at the time he acted. Section 284 allows district courts to punish the full range of culpable behavior. Yet none of this is to say that enhanced damages must follow a finding of egregious misconduct. As with any exercise of discretion, courts should continue to take into account the particular circumstances of each case in deciding whether to award damages, and in what amount. Section 284 permits district courts to exercise their discretion in a manner free from the inelastic constraints of the Seagate test. Consistent with nearly two centuries of enhanced damages under patent law, however, such punishment should generally be reserved for egregious cases typified by willful misconduct. 2 The Seagate test is also inconsistent with § 284 because it requires clear and convincing evidence to prove recklessness. On this point Octane Fitness is again instructive. There too the Federal Circuit had adopted a clear and convincing standard of proof, for awards of attorney's fees under § 285 of the Patent Act. Because that provision supplied no basis for imposing such a heightened standard of proof, we rejected it. See Octane Fitness, 572 U.S., at ----, 134 S.Ct., at 1758. We do so here as well. Like § 285, § 284"imposes no specific evidentiary burden, much less such a high one." Ibid. And the fact that Congress expressly erected a higher standard of proof elsewhere in the Patent Act, see 35 U.S.C. § 273(b), but not in § 284, is telling. Furthermore, nothing in historical practice supports a heightened standard. As we explained in Octane Fitness, "patent-infringement litigation has always been governed by a preponderance of the evidence standard." 572 U.S., at ----, 134 S.Ct., at 1758. Enhanced damages are no exception. 3 Finally, because we eschew any rigid formula for awarding enhanced damages under § 284, we likewise reject the Federal Circuit's tripartite framework for appellate review. In Highmark Inc. v. Allcare Health Management System, Inc., 572 U.S. ----, 134 S.Ct. 1744, 188 L.Ed.2d 829 (2014), we built on our Octane Fitness holding to reject a similar multipart standard of review. Because Octane Fitness confirmed district court discretion to award attorney fees, we concluded that such decisions should be reviewed for abuse of discretion. Highmark, 572 U.S., at ----, 134 S.Ct., at 1747. The same conclusion follows naturally from our holding here. Section 284 gives district courts discretion in meting out enhanced damages. It "commits the determination" whether enhanced damages are appropriate "to the discretion of the district court" and "that decision is to be reviewed on appeal for abuse of discretion." Id., at ----, 134 S.Ct., at 1748. That standard allows for review of district court decisions informed by "the considerations we have identified." Octane Fitness, 572 U.S., at ----, 134 S.Ct., at 1756 (internal quotation marks omitted). The appellate review framework adopted by the Federal Circuit reflects a concern that district courts may award enhanced damages too readily, and distort the balance between the protection of patent rights and the interest in technological innovation. Nearly two centuries of exercising discretion in awarding enhanced damages in patent cases, however, has given substance to the notion that there are limits to that discretion. The Federal Circuit should review such exercises of discretion in light of the longstanding considerations we have identified as having guided both Congress and the courts. III For their part, respondents argue that Congress ratified the Seagate test when it passed the America Invents Act of 2011 and reenacted § 284 without pertinent change. See Brief for Respondents in No. 14-1513 27 (citing Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978) ). But the language Congress reenacted unambiguously confirmed discretion in the district courts. Congress's retention of § 284 could just as readily reflect an intent that enhanced damages be awarded as they had been for nearly two centuries, through the exercise of such discretion, informed by settled practices. Respondents point to isolated snippets of legislative history referring to Seagate as evidence of congressional endorsement of its framework, but other morsels-such as Congress's failure to adopt a proposed codification similar to Seagate -point in the opposite direction. See, e.g., H.R. 1260, 111th Cong., 1st Sess. § 5(e) (2009). Respondents also seize on an addition to the Act addressing opinions of counsel. Section 298 provides that "[t]he failure of an infringer to obtain the advice of counsel" or "the failure of the infringer to present such advice to the court or jury, may not be used to prove that the accused infringer willfully infringed." 35 U.S.C. § 298. Respondents contend that the reference to willfulness reflects an endorsement of Seagate's willfulness test. But willfulness has always been a part of patent law, before and after Seagate. Section 298 does not show that Congress ratified Seagate's particular conception of willfulness. Rather, it simply addressed the fallout from the Federal Circuit's opinion in Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F.2d 1380 (1983), which had imposed an "affirmative duty" to obtain advice of counsel prior to initiating any possible infringing activity, id., at 1389-1390. See, e.g., H.R.Rep. No. 112-98, pt. 1, p. 53 (2011). At the end of the day, respondents' main argument for retaining the Seagate test comes down to a matter of policy. Respondents and their amici are concerned that allowing district courts unlimited discretion to award up to treble damages in infringement cases will impede innovation as companies steer well clear of any possible interference with patent rights. They also worry that the ready availability of such damages will embolden "trolls." Trolls, in the patois of the patent community, are entities that hold patents for the primary purpose of enforcing them against alleged infringers, often exacting outsized licensing fees on threat of litigation. Respondents are correct that patent law reflects "a careful balance between the need to promote innovation" through patent protection, and the importance of facilitating the "imitation and refinement through imitation" that are "necessary to invention itself and the very lifeblood of a competitive economy." Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989). That balance can indeed be disrupted if enhanced damages are awarded in garden-variety cases. As we have explained, however, they should not be. The seriousness of respondents' policy concerns cannot justify imposing an artificial construct such as the Seagate test on the discretion conferred under § 284. * * * Section 284 gives district courts the discretion to award enhanced damages against those guilty of patent infringement. In applying this discretion, district courts are "to be guided by [the] sound legal principles" developed over nearly two centuries of application and interpretation of the Patent Act. Martin, 546 U.S., at 139, 126 S.Ct. 704 (internal quotation marks omitted). Those principles channel the exercise of discretion, limiting the award of enhanced damages to egregious cases of misconduct beyond typical infringement. The Seagate test, in contrast, unduly confines the ability of district courts to exercise the discretion conferred on them. Because both cases before us were decided under the Seagate framework, we vacate the judgments of the Federal Circuit and remand the cases for proceedings consistent with this opinion. It is so ordered. Justice BREYER, with whom Justice KENNEDY and Justice ALITO join, concurring. I agree with the Court that In re Seagate Technology, LLC, 497 F.3d 1360 (C.A.Fed.2007) (en banc), takes too mechanical an approach to the award of enhanced damages. But, as the Court notes, the relevant statutory provision, 35 U.S.C. § 284, nonetheless imposes limits that help produce uniformity in its application and maintain its consistency with the basic objectives of patent law. See U.S. Const., Art. I, § 8, cl. 8 ("To promote the Progress of Science and useful Arts"). I write separately to express my own understanding of several of those limits. First, the Court's references to "willful misconduct" do not mean that a court may award enhanced damages simply because the evidence shows that the infringer knew about the patent and nothing more. Ante, at 1933 - 1934. " '[W]illfu [l]' is a 'word of many meanings whose construction is often dependent on the context in which it appears.' " Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 57, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). Here, the Court's opinion, read as a whole and in context, explains that "enhanced damages are generally appropriate... only in egregious cases." Ante, at 1932 (emphasis added); ante, at 1934 (Enhanced damages "should generally be reserved for egregious cases typified by willful misconduct" (emphasis added)). They amount to a " 'punitive' " sanction for engaging in conduct that is either "deliberate" or "wanton." Ante, at 1931 - 1932; compare Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 508, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964) ("bad-faith infringement"), and Seymour v. McCormick, 16 How. 480, 488, 14 L.Ed. 1024 (1854) ("malicious pirate"), with ante, at 1932 - 1934, and n. 1 ("objective recklessness"). The Court refers, by way of example, to a " 'wanton and malicious pirate' who intentionally infringes another's patent-with no doubts about its validity or any notion of a defense-for no purpose other than to steal the patentee's business." Ante, at 1932. And while the Court explains that "intentional or knowing" infringement "may" warrant a punitive sanction, the word it uses is may, not must. Ante, at 1932 - 1933. It is "circumstanc[e]" that transforms simple knowledge into such egregious behavior, and that makes all the difference. Ante, at 1933 - 1934. Second, the Court writes against a statutory background specifying that the "failure of an infringer to obtain the advice of counsel... may not be used to prove that the accused infringer wilfully infringed." § 298. The Court does not weaken this rule through its interpretation of § 284. Nor should it. It may well be expensive to obtain an opinion of counsel. See Brief for Public Knowledge et al. as Amici Curiae 9 ("[O]pinion[s] [of counsel] could easily cost up to $100,000 per patent"); Brief for Internet Companies as Amici Curiae 13 (such opinions cost "tens of thousands of dollars"). Such costs can prevent an innovator from getting a small business up and running. At the same time, an owner of a small firm, or a scientist, engineer, or technician working there, might, without being "wanton" or "reckless," reasonably determine that its product does not infringe a particular patent, or that that patent is probably invalid. Cf. Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. ----, ----, 133 S.Ct. 2107, 2117, 186 L.Ed.2d 124 (2013) (The "patent['s][own] descriptions highlight the problem[s] with its claims"). I do not say that a lawyer's informed opinion would be unhelpful. To the contrary, consulting counsel may help draw the line between infringing and noninfringing uses. But on the other side of the equation lie the costs and the consequent risk of discouraging lawful innovation. Congress has thus left it to the potential infringer to decide whether to consult counsel-without the threat of treble damages influencing that decision. That is, Congress has determined that where both "advice of counsel" and "increased damages" are at issue, insisting upon the legal game is not worth the candle. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Stevens delivered the opinion of the Court. In Edwards v. Arizona, 451 U. S. 477 (1981), we held that an accused person in custody who has “expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id., at 484-485. In Solem v. Stumes, 465 U. S. 638 (1984), we reiterated that “Edwards established a bright-line rule to safeguard pre-existing rights,” id., at 646: “once a suspect has invoked the right to counsel, any subsequent conversation must be initiated by him.” Id., at 641. The question presented by these two cases is whether the same rule applies to a defendant who has been formally charged with a crime and who has requested appointment of counsel at his arraignment. In both cases, the Michigan Supreme Court held that postarraignment confessions were improperly obtained — and the Sixth Amendment violated— because the defendants had “requested counsel during their arraignments, but were not afforded an opportunity to consult with counsel before the police initiated further interrogations.” 421 Mich. 39, 67-68, 365 N. W. 2d 56, 69 (1984). We agree with that holding. H-{ The relevant facts may be briefly stated. Respondent Bladel was convicted of the murder of three railroad employees at the Amtrak Station in Jackson, Michigan, on December 31, 1978. Bladel, a disgruntled former employee, was arrested on January 1, 1979, and, after being questioned on two occasions, was released on January 3. He was arrested again on March 22, 1979, and agreed to talk to the police that evening without counsel. On the following morning, Friday, March 23, 1979, Bladel was arraigned. He requested that counsel be appointed for him because he was indigent. The detective in charge of the Bladel investigation was present at the arraignment. A notice of appointment was promptly mailed to a law firm, but the law firm did not receive it until Tuesday, March 27. In the interim, on March 26, 1979, two police officers interviewed Bladel in the county jail and obtained a confession from him. Prior to that questioning, the officers properly advised Bladel of his Miranda rights. Although he had inquired about his representation several times since the arraignment, Bladel was not told that a law firm had been appointed to represent him. The trial court overruled Bladel’s objection to the admissibility of all four statements. On appeal from his conviction and sentence, Bladel challenged only the postarraignment confession. The Michigan Court of Appeals first rejected that challenge and affirmed the conviction, 106 Mich. App. 397, 308 N. W. 2d 230 (1981), but, after reconsideration in the light of a recent decision by the State Supreme Court, it reversed and remanded for a new trial. 118 Mich. App. 498, 325 N. W. 2d 421 (1982). The Michigan Supreme Court then granted the prosecutor’s application for leave to appeal and considered the case with respondent Jackson’s appeal of his conviction. 421 Mich. 39, 365 N. W. 2d 56 (1984). Respondent Jackson was convicted of second-degree murder and conspiracy to commit second-degree murder. He was one of four participants in a wife’s plan to have her husband killed on July 12, 1979. Arrested on an unrelated charge on July 30, 1979, he made a series of six statements in response to police questioning prior to his arraignment at 4:30 p.m. on August 1. During the arraignment, Jackson requested that counsel be appointed for him. The police involved in his investigation were present at the arraignment. On the following morning, before he had an opportunity to consult with counsel, two police officers obtained another statement from Jackson to “confirm” that he was the person who had shot the victim. As was true of the six prearraignment statements, the questioning was preceded by advice of his Miranda rights and Jackson’s agreement to proceed without counsel being present. The Michigan Court of Appeals held that the seventh statement was properly received in evidence. 114 Mich. App. 649, 319 N. W. 2d 613 (1982). It distinguished Edwards on the ground that Jackson’s request for an attorney had been made at his arraignment whereas Edwards’ request had been made during a custodial interrogation by the police. Accordingly, it affirmed Jackson’s conviction of murder, although it set aside the conspiracy conviction on unrelated grounds. The Michigan Supreme Court held that the postarraignment statements in both cases should have been suppressed. Noting that the Sixth Amendment right to counsel attached at the time of the arraignments, the court concluded that the Edwards rule “applies by analogy to those situations where an accused requests counsel before the arraigning magistrate. Once this request occurs, the police may not conduct further interrogations until counsel has been made available to the accused, unless the accused initiates further communications, exchanges, or conversations with the police. . . . The police cannot simply ignore a defendant’s unequivocal request for counsel.” 421 Mich., at 66-67, 365 N. W. 2d, at 68-69 (footnote omitted). We granted certiorari, 471 U. S. 1124 (1985), and we now affirm. II The question is not whether respondents had a right to counsel at their postarraignment, custodial interrogations. The existence of that right is clear. It has two sources. The Fifth Amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations. Edwards, 451 U. S., at 482; Miranda v. Arizona, 384 U. S. 436, 470 (1966). The Sixth Amendment guarantee of the assistance of counsel also provides the right to counsel at postarraignment interrogations. The arraignment signals “the initiation of adversary judicial proceedings” and thus the attachment of the Sixth Amendment, United States v. Gouveia, 467 U. S. 180, 187, 188 (1984); thereafter, government efforts to elicit information from the accused, including interrogation, represent “critical stages” at which the Sixth Amendment applies. Maine v. Moulton, 474 U. S. 159 (1985); United States v. Henry, 447 U. S. 264 (1980); Brewer v. Williams, 430 U. S. 387 (1977); Massiah v. United States, 377 U. S. 201 (1964). The question in these cases is whether respondents validly waived their right to counsel at the postarraignment custodial interrogations. In Edwards, the request for counsel was made to the police during custodial interrogation, and the basis for the Court’s holding was the Fifth Amendment privilege against compelled self-incrimination. The Court noted the relevance of various Sixth Amendment precedents, 451 U. S., at 484, n. 8, but found it unnecessary to rely on the possible applicability of the Sixth Amendment. Id., at 480, n. 7. In these cases, the request for counsel was made to a judge during arraignment, and the basis for the Michigan Supreme Court opinion was the Sixth Amendment’s guarantee of the assistance of counsel. The State argues that the Edwards rule should not apply to these circumstances because there are legal differences in the basis for the claims; because there are factual differences in the contexts of the claims; and because respondents signed valid waivers of their right to counsel at the postarraignment custodial interrogations. We consider these contentions in turn. The State contends that differences in the legal principles underlying the Fifth and Sixth Amendments compel the conclusion that the Edwards rule should not apply to a Sixth Amendment claim. Edwards flows from the Fifth Amendment’s right to counsel at custodial interrogations, the State argues; its relevance to the Sixth Amendment’s provision of the assistance of counsel is far less clear, and thus the Edwards principle for assessing waivers is unnecessary and inappropriate. In our opinion, however, the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense than before. The State’s argument misapprehends the nature of the pretrial protections afforded by the Sixth Amendment. In United States v. Gouveia, we explained the significance of the formal accusation, and the corresponding attachment of the Sixth Amendment right to counsel: “[G]iven the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings ‘is far from a mere formalism.’ Kirby v. Illinois, 406 U. S., at 689. It is only at that time ‘that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecuto-rial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.’” 467 U. S., at 189. As a result, the “Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a ‘medium’ between him and the State.” Maine v. Moulton, 474 U. S., at 176. Thus, the Sixth Amendment right to counsel at a postarraignment interrogation requires at least as much protection as the Fifth Amendment right to counsel at any custodial interrogation. Indeed, after a formal accusation has been made — and a person who had previously been just a “suspect” has become an “accused” within the meaning of the Sixth Amendment— the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation. Thus, the surreptitious employment of a cellmate, see United States v. Henry, 447 U. S. 264 (1980), or the electronic surveillance of conversations with third parties, see Maine v. Moulton, supra; Massiah v. United States, 377 U. S. 201 (1964), may violate the defendant’s Sixth Amendment right to counsel even though the same methods of investigation might have been permissible before arraignment or indictment. Far from undermining the Edwards rule, the difference between the legal basis for the rule applied in Edwards and the Sixth Amendment claim asserted in these cases actually provides additional support for the application of the rule in these circumstances. The State also relies on the factual differences between a request for counsel during custodial interrogation and a request for counsel at an arraignment. The State maintains that respondents may not have actually intended their request for counsel to encompass representation during any further questioning by the police. This argument, however, must be considered against the backdrop of our standard for assessing waivers of constitutional rights. Almost a half century ago, in Johnson v. Zerbst, 304 U. S. 458 (1938), a case involving an alleged waiver of a defendant’s Sixth Amendment right to counsel, the Court explained that we should “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Id., at 464. For that reason, it is the State that has the burden of establishing a valid waiver. Brewer v. Williams, 430 U. S., at 404. Doubts must be resolved in favor of protecting the constitutional claim. This settled approach to questions of waiver requires us to give a broad, rather than a narrow, interpretation to a defendant’s request for counsel — we presume that the defendant requests the lawyer’s services at every critical stage of the prosecution. We thus reject the State’s suggestion that respondents’ requests for the appointment of counsel should be construed to apply only to representation in formal legal proceedings. The State points to another factual difference: the police may not know of the defendant’s request for attorney at the arraignment. That claimed distinction is similarly unavailing. In the cases at bar, in which the officers in charge of the investigations of respondents were present at the arraignments, the argument is particularly unconvincing. More generally, however, Sixth Amendment principles require that we impute the State’s knowledge from one state actor to another. For the Sixth Amendment concerns the confrontation between the State and the individual. One set of state actors (the police) may not claim ignorance of defendants’ unequivocal request for counsel to another state actor (the court). The State also argues that, because of these factual differences, the application of Edwards in a Sixth Amendment context will generate confusion. However, we have frequently emphasized that one of the characteristics of Edwards is its clear, “bright-line” quality. See, e. g., Smith v. Illinois, 469 U. S. 91, 98 (1984); Solem v. Stumes, 465 U. S., at 646; Oregon v. Bradshaw, 462 U. S. 1039, 1044 (1983) (plurality opinion); id., at 1054, n. 2 (MARSHALL, J., dissenting). We do not agree that applying the rule when the accused requests counsel at an arraignment, rather than in the police station, somehow diminishes that clarity. To the extent that there may have been any doubts about interpreting a request for counsel at an arraignment, or about the police responsibility to know of and respond to such a request, our opinion today resolves them. Finally, the State maintains that each of the respondents made a valid waiver of his Sixth Amendment rights by signing a postarraignment confession after again being advised of his constitutional rights. In Edwards, however, we rejected the notion that, after a suspect’s request for counsel, advice of rights and acquiescence in police-initiated questioning could establish a valid waiver. 451 U. S., at 484. We find no warrant for a different view under a Sixth Amendment analysis. Indeed, our rejection of the comparable argument in Edwards was based, in part, on our review of earlier Sixth Amendment cases. Just as written waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis. r — H l-H Edwards is grounded in the understanding that “the assertion of the right to counsel [is] a significant event,” 451 U. S., at 485, and that “additional safeguards are necessary when the accused asks for counsel.” Id., at 484. We conclude that the assertion is no less significant, and the need for additional safeguards no less clear, when the request for counsel is made at an arraignment and when the basis for the claim is the Sixth Amendment. We thus hold that, if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid. Although the Edwards decision itself rested on the Fifth Amendment and concerned a request for counsel made during custodial interrogation, the Michigan Supreme Court correctly perceived that the reasoning of that case applies with even greater force to these cases. The judgments are accordingly affirmed. It is so ordered. See Miranda v. Arizona, 384 U. S. 436 (1966). The Miranda warnings were also given prior to the questioning on January 1, January 2, and March 22. Although Bladel made certain inculpatory statements on those occasions, he denied responsibility for the murder until after the arraignment. As the Michigan Supreme Court noted, even without his own statements, the evidence against Bladel was substantial. 421 Mich., at 44, and n. 2, 365 N. W. 2d, at 58-59, and n. 2. Respondent Jackson points out that the Michigan Supreme Court also held that his fourth, fifth, and sixth statements should have been suppressed on grounds of prearraignment delay under a state statute. He therefore argues that the decision rests on an adequate and independent state ground and that the writ of certiorari should be dismissed. The state-court opinion, however, does not apply that prearraignment-delay holding to the seventh statement. Thus, although the Michigan court’s holding on the other statements does mean that Jackson’s conviction must be reversed regardless of this Court’s decision, the admissibility of the seventh statement is controlled by that court’s Sixth Amendment analysis, and is properly before us. In Jackson, the State concedes that the arraignment represented the initiation of formal legal proceedings, and that the Sixth Amendment attached at that point. Brief for Petitioner in No. 84-1531, p. 10. In Bladel, however, the State disputes that contention, Brief for Petitioner in No. 84-1539, pp. 24-26. In view of the clear language in our decisions about the significance of arraignment, the State’s argument is untenable. See, e. g., Brewer v. Williams, 430 U. S. 387, 398 (1977) (“[A] person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him — ‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment’”) (emphasis added), quoting Kirby v. Illinois, 406 U. S. 682, 689 (1972) (plurality opinion). See also United States v. Gouveia, 467 U. S., at 187-188 (quoting Kirby); Estelle v. Smith, 451 U. S. 454, 469-470 (1981) (quoting Kirby); Moore v. Illinois, 434 U. S. 220, 226 (1977) (quoting Kirby). Cf. Powell v. Alabama, 287 U. S. 45, 57 (1932) (“[T]he most critical period of the proceedings against these defendants” was “from the time of their arraignment until the beginning of their trial”) (emphasis added). The question whether arraignment signals the initiation of adversary judicial proceedings, moreover, is distinct from the question whether the arraignment itself is a critical stage requiring the presence of counsel, absent a valid waiver. Cf. Hamilton v. Alabama, 368 U. S. 52 (1961) (Alabama arraignment is a “critical stage”). The Michigan Supreme Court found that “defendants’ request to the arraigning magistrate for appointment of counsel implicated only their Sixth Amendment right to counsel,” 421 Mich., at 52, 365 N. W. 2d, at 62, because the request was not made during custodial interrogation. It was for that reason that the Michigan court did not rely on a Fifth Amendment Edwards analysis. We express no comment on the validity of the Michigan court’s Fifth Amendment analysis. Similarly, after the initiation of adversary judicial proceedings, the Sixth Amendment provides a right to counsel at a “critical stage” even when there is no interrogation and no Fifth Amendment applicability. See United States v. Wade, 388 U. S. 218 (1967) (Sixth Amendment provides right to counsel at postindictment lineup even though Fifth Amendment is not implicated). In construing respondents’ request for counsel, we do not, of course, suggest that the right to counsel turns on such a request. See Brewer v. Williams, 430 U. S., at 404 (“[T]he right to counsel does not depend upon a request by the defendant”); Carnley v. Cochran, 369 U. S. 506, 513 (1962) (“[I]t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request”). Rather, we construe the defendant’s request for counsel as an extremely important fact in considering the validity of a subsequent waiver in response to police-initiated interrogation. We also agree with the comments of the Michigan Supreme Court about the nature of an accused’s request for counsel: “Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking; he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge. The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.” 421 Mich., at 63-64, 365 N. W. 2d, at 67. See, e. g., Maine v. Moulton, 474 U. S. 159, 170-171 (1985): “Once the right to counsel has attached and been asserted, the State must of course honor it. This means more than simply that the State cannot prevent the accused from obtaining the assistance of counsel. The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused’s choice to seek this assistance” (emphasis added) (footnote omitted). After stating our holding that “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights,” 451 U. S., at 484, we appended this footnote: “In Brewer v. Williams, 430 U. S. 387 (1977), where, as in Massiah v. United States, 377 U. S. 201 (1964), the Sixth Amendment right to counsel had accrued, the Court held that a valid waiver of counsel rights should not be inferred from the mere response by the accused to overt or more subtle forms of interrogation or other efforts to elicit incriminating information. In Massiah and Brewer, counsel had been engaged or appointed and the admissions in question were elicited in his absence. But in McLeod v. Ohio, 381 U. S. 356 (1965), we summarily reversed a decision that the police could elicit information after indictment even though counsel had not yet been appointed.” Id., at 484, n. 8. The State also argues that the Michigan Supreme Court’s finding of a valid Fifth Amendment waiver should require the finding of a valid Sixth Amendment waiver. The relationship between the validity of waivers for Fifth and Sixth Amendment purposes has been the subject of considerable attention in the courts, 421 Mich., at 55-62, 365 N. W. 2d, at 63-67 (discussing and collecting eases), and the commentaries, id., at 54, n. 15, 365 N. W. 2d, at 63, n. 15. In view of our holding that the Edwards rule applies to the Sixth Amendment and that the Sixth Amendment requires the suppression of the postarraignment statements, we need not decide either the validity of the Fifth Amendment waiver in this case, see n. 4, supra, or the general relationship between Fifth and Sixth Amendment waivers. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice White delivered the opinion of the Court. This case involves the validity of a qualifying test administered to applicants for positions as police officers in the District of Columbia Metropolitan Police Department. The test was sustained by the District Court but invalidated by the Court of Appeals. We are in agreement with the District Court and hence reverse the judgment of the Court of Appeals. I This action began on April 10, 1970, when two Negro police officers filed suit against the then Commissioner of the District of Columbia, the Chief of the District’s Metropolitan Police Department, and the Commissioners of the United States Civil Service Commission. An amended complaint, filed December 10, alleged that the promotion policies of the Department were racially discriminatory and sought a declaratory judgment and an injunction. The respondents Harley and Sellers were permitted to intervene, their amended complaint asserting that their applications to become officers in the Department had been rejected, and that the Department’s recruiting procedures discriminated on the basis of race against black applicants by a series of practices including, but not limited to, a written personnel test which excluded a disproportionately high number of Negro applicants. These practices were asserted to violate respondents’ rights “under the due process clause of the Fifth Amendment to the United States Constitution, under 42 U. S. C. § 1981 and under D. C. Code § 1-320.” Defendants answered, and discovery and various other proceedings followed. Respondents then filed a motion for partial summary judgment with respect to the recruiting phase of the case, seeking a declaration that the test administered to those applying to become police officers is “unlawfully discriminatory and thereby in violation of the due process clause of the Fifth Amendment... No issue under any statute or regulation was raised by the motion. The District of Columbia defendants, petitioners here, and the federal parties also filed motions for summary judgment with respect to the recruiting aspects of the case, asserting that respondents were entitled to relief on neither constitutional nor statutory grounds. The District Court granted petitioners' and denied respondents’ motions. 348 F. Supp. 15 (DC 1972). According to the findings and conclusions of the District Court, to be accepted by the Department and to enter an intensive 17-week training program, the police recruit was required to satisfy certain physical and character standards, to be a high school graduate or its equivalent, and to receive a grade of at least 40 out of 80 on “Test 21,” which is “an examination that is used generally throughout the federal service,” which “was developed by the Civil Service Commission, not the Police Department,” and which was “designed to test verbal ability, vocabulary, reading and comprehension.” Id., at 16. The validity of Test 21 was the sole issue before the court on the motions for summary judgment. The District Court noted that there was no claim of “an intentional discrimination or purposeful discriminatory acts” but only a claim that Test 21 bore no relationship to job performance and “has a highly discriminatory impact in screening out black candidates.” Ibid. Respondents’ evidence, the District Court said, warranted three conclusions: “(a) The number of black police officers, while substantial, is not proportionate to the population'mix of the city, (b) A higher percentage of blacks fail the Test than whites, (c) The Test has not been validated to establish its reliability for measuring subsequent job performance.” Ibid. This showing was deemed sufficient to shift the burden of proof to the defendants in the action, petitioners here; but the court nevertheless concluded that on the undisputed facts respondents were not entitled to relief.. The District Court relied on several factors. Since August 1969, 44% of new police force recruits had been black; that figure also represented the proportion of blacks on the total force and was roughly equivalent to 20- to 29-year-old blacks in the 50-mile radius in which the recruiting efforts of the Police Department had been concentrated. It was undisputed that the Department had systematically and affirmatively sought to enroll black officers many of whom passed the test but failed to report for duty. The District Court rejected the assertion that Test 21 was culturally slanted to favor whites and was “satisfied that the undisputable facts prove the test to be reasonably and directly related to the requirements of the police recruit training program and that it is neither so designed nor operates [sic] to discriminate against otherwise qualified blacks.” Id., at 17. It was thus not necessary to show that Test 21 was not only a useful indicator of training school performance but had also been validated in terms of job performance-— “The lack of job performance validation does not defeat the Test, given its direct relationship to recruiting and the valid part it plays in this process.” Ibid. The District Court ultimately concluded that “[t]he proof is wholly lacking that a police officer qualifies on the color of his skin rather than ability” and that the Department “should not be required on this showing to lower standards or to abandon efforts to achieve excellence.” Id., at 18. Having lost on both constitutional and statutory issues in the District Court, respondents brought the case to the Court of Appeals claiming that their summary judgment motion, which rested on purely constitutional grounds, should have been granted. The tendered constitutional issue was whether the use of Test 21 invidiously discriminated against Negroes and hence denied them due process of law contrary to the commands of the Fifth Amendment. The Court- of Appeals, addressing that issue, announced that it would be guided by Griggs v. Duke Power Co., 401 U. S. 424 (1971), a case involving the interpretation and application of Title VII of the Civil Rights Act of 1964, and held that the statutory standards elucidated in that case were to govern the due process question tendered in this one. 168 U. S. App. D. C. 42, 512 F. 2d 956 (1975). The court went on to declare that lack of discriminatory intent in designing and administering Test 21 was irrelevant; the critical fact was rather that a far greater proportion of blacks— four times as many — failed the test than did whites. This disproportionate impact, standing alone and without regard to whether it indicated a discriminatory purpose, was held sufficient to establish a constitutional violation, absent proof by petitioners that the test was an adequate measure of job performance in addition to being an indicator of probable success in the training program, a burden which the court ruled petitioners had failed to discharge. That the Department had made substantial efforts to recruit blacks was held beside the point and the fact that the racial distribution of recent hirings and of the Department itself might be roughly equivalent to the racial makeup of the surrounding community, broadly conceived, was put aside as a “comparison [not] material to this appeal.” Id., at 46 n. 24, 512 F. 2d, at 960 n. 24. The Court of Appeals, over a dissent, accordingly reversed the judgment of the District Court and directed that respondents’ motion for partial summary judgment be granted. We granted the petition for certiorari, 423 U. S. 820 (1975), filed by the District of Columbia officials. II Because the Court of Appeals erroneously applied the legal standards applicable to Title VII cases in resolving the constitutional issue before it, we reverse its judgment in respondents’ favor. Although the petition for certio-rari did not present this ground for reversal, our Rule 40 (1) (d)(2) provides that we “may notice a plain error not presented”; and this is an appropriate occasion to invoke the Rule. As the Court of Appeals understood Title VII, employees or applicants proceeding under it need not concern themselves with the employer’s possibly discriminatory purpose but instead may focus solely on the racially differential impact of the challenged hiring or promotion practices. This is not the constitutional rule. We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today. The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis1 of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups. Bolling v. Sharpe, 347 U. S. 497 (1954). But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact. Almost 100 years ago, Strauder v. West Virginia, 100 U. S. 303 (1880), established that the exclusion of Negroes from grand and petit juries in criminal proceedings violated the Equal Protection Clause, but the fact that a particular jury or a series of juries does not statistically reflect the racial composition of the community does not in itself make out an invidious discrimination forbidden by the Clause. “A purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimination.” Akins v. Texas, 325 U. S. 398, 403-404 (1945). A defendant in a criminal case is entitled “to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice.” Alexander v. Louisiana, 405 U. S. 625, 628-629 (1972). See also Carter v. Jury Comm’n, 396 U. S. 320, 335-337, 339 (1970); Cassell v. Texas, 339 U. S. 282, 287-290 (1950); Patton v. Mississippi, 332 U. S. 463, 468-469 (1947). The rule is the same in other contexts. Wright v. Rockefeller, 376 U. S. 52 (1964), upheld a New York congressional apportionment statute against claims that district lines had been racially gerrymandered. The challenged districts were made up predominantly of whites or of minority races, and their boundaries were irregularly drawn. The challengers did not prevail because they failed to prove that the New York Legislature “was either motivated by racial considerations or in fact drew the districts on racial lines”; the plaintiffs had not shown that the statute “was the product of a state contrivance to segregate on the basis of race or place of origin.” Id., at 56, 58. The dissenters were in agreement that the issue was whether the “boundaries... were purposefully drawn on racial lines.” Id., at 67. The school desegregation cases have also adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. That there are both predominantly black and predominantly white schools in a community is not alone violative of the Equal Protection Clause. The essential element of de jure segregation is “a current condition of segregation resulting from intentional state action.” Keyes v. School Dist. No. 1, 413 U. S. 189, 205 (1973). “The differentiating factor between de jure segregation and so-called de facto segregation... is purpose or intent to segregate.” Id., at 208. See also id., at 199, 211, 213. The Court has also recently rejected allegations of racial discrimination based solely on the statistically disproportionate racial impact of various provisions of the Social Security Act because “[t]he acceptance of appellants’ constitutional theory would render suspect each difference in treatment among the grant classes, however lacking in racial motivation and however otherwise rational the treatment might be.” Jefferson v. Hackney, 406 U. S. 535, 548 (1972). And compare Hunter v. Erickson, 393 U. S. 385 (1969), with James v. Valtierra, 402 U. S. 137 (1971). This is not to say that the necessary discriminatory racial purpose must be express or appear on the face of the statute, or that a law’s disproportionate impact is irrelevant in cases involving Constitution-based claims of racial discrimination. A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race. Yick Wo v. Hopkins, 118 U. S. 356 (1886). It is also clear from the cases dealing with racial discrimination in the selection of juries that the systematic exclusion of Negroes is itself such an “unequal application of the law... as to show intentional discrimination.” Akins v. Texas, supra, at 404. Smith v. Texas, 311 U. S. 128 (1940); Pierre v. Louisiana, 306 U. S. 354 (1939); Neal v. Delaware, 103 U. S. 370 (1881). A prima facie case of discriminatory purpose may be proved as well by the absence of Negroes on a particular jury combined with the failure of the jury commissioners to be informed of eligible Negro jurors in a community, Hill v. Texas, 316 U. S. 400, 404 (1942), or with racially non-neutral selection procedures, Alexander v. Louisiana, supra; Avery v. Georgia, 345 U. S. 559 (1953); Whitus v. Georgia, 385 U. S. 545 (1967). With a prima facie case made out, “the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.” Alexander, supra, at 632. See also Turner v. Fouche, 396 U. S. 346, 361 (1970); Eubanks v. Louisiana, 356 U. S. 584, 587 (1958). Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact — in the jury cases for example, the total or seriously disproportionate exclusion of Negroes from jury venires — may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds. Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule, McLaughlin v. Florida, 379 U. S. 184 (1964), that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations. There are some indications to the contrary in our cases. In Palmer v. Thompson, 403 U. S. 217 (1971), the city of Jackson, Miss., following a court decree to this effect, desegregated all of its public facilities save five swimming pools which had been operated by the city and which, following the decree, were closed by ordinance pursuant to a determination by the city council that closure was necessary to preserve peace and order and that integrated pools could not be economically operated. Accepting the finding that the pools were closed to avoid violence and economic loss, this Court rejected the argument that the abandonment of this service was inconsistent with the outstanding desegregation decree and that the otherwise seemingly permissible ends served by the ordinance could be impeached by demonstrating that racially invidious motivations had prompted the city council’s action. The holding was that the city was not overtly or covertly operating segregated pools and was extending identical treatment to both whites and Negroes. The opinion warned against grounding decision on legislative purpose or motivation, thereby lending support for the proposition that the operative effect of the law rather than its purpose is the paramount factor. But the holding of the case was that the legitimate purposes of the ordinance — to preserve peace and avoid deficits — were not open to impeachment by evidence that the councilmen were actually motivated by racial considerations. Whatever dicta the opinion may contain, the decision did not involve, much less invalidate, a statute or ordinance having neutral purposes but disproportionate racial consequences. Wright v. Council of City of Emporia, 407 U. S. 451 (1972), also indicates that in proper circumstances, the racial impact of a law, rather than its discriminatory purpose, is the critical factor. That case involved the division of a school district. The issue was whether the division was consistent with an outstanding order of a federal court to desegregate the dual school system found to have existed in the area. The constitutional predicate for the District Court’s invalidation of the divided district was “the enforcement until 1969 of racial segregation in a public school system of which Emporia had always been a part.” Id., at 459. There was thus no need to find “an independent constitutional violation.” Ibid. Citing Palmer v. Thompson, we agreed with the District Court that the division of the district had the effect of interfering with the federal decree and should be set aside. That neither Palmer nor Wright was understood to have changed the prevailing rule is apparent from Keyes v. School Dist. No. 1, supra, where the principal issue in litigation was whether and to what extent there had been purposeful discrimination resulting in a partially or wholly segregated school system. Nor did other later cases, Alexander v. Louisiana, supra, and Jefferson v. Hackney, supra, indicate that either Palmer or Wright had worked a fundamental change in equal protection law. Both before and after Palmer v. Thompson, however, various Courts of Appeals have held in several contexts, including public employment, that the substantially disproportionate racial impact of a statute or official practice standing alone and without regard to discriminatory purpose, suffices to prove racial discrimination violating the Equal Protection Clause absent some justification going substantially beyond what would be necessary to validate most other legislative classifications. The cases impressively demonstrate that there is another side to the issue; but, with all due respect, to the extent that those cases rested on or expressed the view that proof of discriminatory racial purpose is unnecessary in making out an equal protection violation, we are in disagreement. As an initial matter, we have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory and denies “any person... equal protection of the laws” simply because a greater proportion of Negroes fail to qualify than members of other racial or ethnic groups. Had respondents, along with all others who had failed Test 21, whether white or black, brought an action claiming that the test denied each of them equal protection of the laws as compared with those who had passed with high enough scores to qualify them as police recruits, it is most unlikely that their challenge would have been sustained. Test 21, which is administered generally to prospective Government employees, concededly seeks to ascertain whether those who take it have acquired a particular level of verbal skill; and it is untenable that the Constitution prevents the Government from seeking modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence, particularly where the job requires special ability to communicate orally and in writing. Respondents, as Negroes, could no more successfully claim that the test denied them equal protection than could white applicants who also failed. The conclusion would not be different in the face of proof that more Negroes than whites had been disqualified by Test 21. That other Negroes also failed to score well would, alone, not demonstrate that respondents individually were being denied equal protection of the laws by the application of an otherwise valid qualifying test being administered to prospective police recruits. Nor on the facts of the case before us would the disproportionate impact of Test 21 warrant the conclusion that it is a purposeful device to discriminate against Negroes and hence an infringement of the constitutional rights of respondents as well as other black applicants. As we have said, the test is neutral on its face and rationally may be said to serve a purpose the Government is constitutionally empowered to pursue. Even agreeing with the District Court that the differential racial effect of Test 21 called for further inquiry, we think the District Court correctly held that the affirmative efforts of the Metropolitan Police Department to recruit black officers, the changing racial composition of the recruit classes and of the force in general, and the relationship of the test to the training program negated any inference that the Department discriminated on the basis of race or that “a police officer qualifies on the color of his skin rather than ability.” 348 P. Supp., at 18. Under Title "VII, Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary, in addition, that they be “validated” in terms of job performance in any one of several ways, perhaps by ascertaining the minimum skill, ability, or potential necessary for the position at issue and determining whether the qualifying tests are appropriate for the selection of qualified applicants for the job in question. However this process proceeds, it involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed. We are not disposed to adopt this more rigorous standard for the purposes of applying the Fifth and the Fourteenth Amendments in cases such as this. A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white. Given that rule, such consequences would perhaps be likely to follow. However, in our view, extension of the rule beyond those areas where it is already applicable by reason of statute, such as in the field of public employment, should await legislative prescription. As we have indicated, it was error to direct summary judgment for respondents based on the Fifth Amendment. Ill We also hold that the Court of Appeals should have affirmed the judgment of the District Court granting the motions for summary judgment filed by petitioners and the federal parties. Respondents were entitled to relief on neither constitutional nor statutory grounds. The submission of the defendants in the District Court was that Test 21 complied with all applicable statutory as well as constitutional requirements; and they appear not to have disputed that under the statutes and regulations governing their conduct standards similar to those obtaining under Title VII had to be satisfied. The District Court also assumed that Title VII standards were to control the case, identified the determinative issue as whether Test 21 was sufficiently job related and proceeded to uphold use of the test- because it was “directly related to a determination of whether the applicant possesses sufficient skills requisite to the demands of the curriculum a recruit must master at the police academy.” 348 F. Supp., at 17. The Court of Appeals reversed because the relationship between Test 21 and training school success, if demonstrated at all, did not satisfy what it deemed to be the crucial requirement of a direct relationship between performance on Test 21 and performance on the policeman’s job. We agree with petitioners and the federal parties that this was error. The advisability of the police recruit training course informing the recruit about his upcoming job, acquainting him with its demands, and attempting to impart a modicum of required skills seems conceded. It is also apparent to us, as it was to the District Judge, that some minimum verbal and communicative skill would be very useful, if not essential, to satisfactory progress in the training regimen. Based on the evidence before him, the District Judge concluded that Test 21 was directly related to the requirements of the police training program and that a positive relationship between the test and training-course performance was sufficient to validate the former, wholly aside from its possible relationship to actual performance as a police officer. This conclusion of the District Judge that training-program validation may itself be sufficient is supported by regulations of the Civil Service Commission, by the opinion evidence placed before the District Judge, and by the current views of the Civil Service Commissioners who were parties to the case. Nor is the conclusion foreclosed by either Griggs or Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975); and it seems to us the much more sensible construction of the job-relatedness requirement. The District Court’s accompanying conclusion that Test 21 was in fact directly related to the requirements of the police training program was supported by a validation study, as well as by other evidence of record; and we are not convinced that this conclusion was erroneous. The federal parties, whose views have somewhat' changed since the decision of the Court of Appeals and who still insist that training-program validation is sufficient, now urge a remand to the District Court for the purpose of further inquiry into whether the training-program test scores, which were found to correlate with Test 21 scores, are themselves an appropriate measure of the trainee’s mastership of the material taught in the course and whether the training program itself is sufficiently related to actual performance of the police officer’s task. We think a remand is inappropriate. The District Court’s judgment was warranted by the record before it, and we perceive no good reason to reopen it, particularly since we were informed at oral argument that although Test 21 is still being administered, the training program itself has undergone substantial modification in the course of this litigation. If there are now deficiencies in the recruiting practices under prevailing Title VII standards, those deficiencies are to be directly addressed in accordance with appropriate procedures mandated under that Title. The judgment of the Court of Appeals accordingly is reversed. So ordered. Mr. Justice Stewart joins Parts I and II of the Court’s opinion. Under §4M03 of the District of Columbia Code, appointments to the Metropolitan Police force were to- be made by the Commissioner subject to the provisions of Title 5 of the United States Code relating to the classified civil service, The District of Columbia Council and the Office of Commissioner of the District of Columbia, established by Reorganization Plan No. 37 of 1967, were abolished as of January 2, 1975, and replaced by the Council of the District of Columbia and the Office of Mayor of the District of Columbia. Title 42 U. S. C. § 1981 provides: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” Section 1-320 of the District of Columbia Code (1973) provides: “In any program of recruitment or hiring of individuals to fill positions in the government of the District of Columbia, no officer or employee of the government of the District of Columbia shall exclude or give preference to the residents of the District of Columbia or any State of the United States on the basis of residence, religion, race, color, or national origin.” One of the provisions expressly made applicable to the Metropolitan Police force by § 4M03 is 5 U. S. C. § 3304 (a), which provides: “§3304. Competitive service; examinations. “(a) The President may prescribe rules which shall provide, as nearly as conditions of good administration warrant, for— “(1) open, competitive examinations for testing applicants for appointment in the competitive service which are practical in character and as far as possible relate to matters that fairly test the relative capacity and fitness of the applicants for the appointment sought; and “(2) noncompetitive examinations when competent applicants do not compete after notice has been given of the existence of the vacancy.” The complaint asserted, no claim under § 3304. Those proceedings included a hearing on respondents’ motion for an order designating the case as a class action. A ruling on the motion was held in abeyance and was never granted insofar as the record before us reveals. In support of the motion, petitioners and the federal parties urged that they were in compliance with all applicable constitutional, statutory, and regulatory provisions, including the provisions of the Civil Service Act which since 1883 were said to have established a “job relatedness” standard for employment. When summary judgment was granted, the case with respect to discriminatory promotions was still pending. The District Court, however, made the determination and direction authorized by Fed. Rule Civ. Proc. 54 (b). The promotion issue was subsequently decided adversely to the original plaintiffs. Davis v. Washington, 352 F. Supp. 187 (DC 1972). “Although appellants’ complaint did not allege a violation of Title VII of the Civil Rights Act of 1964, which then was inapplicable to the Federal Government, decisions applying Title VII furnish additional instruction as to the legal standard governing the issues raised in this ease.... The many decisions disposing of employment discrimination claims on constitutional grounds have made no distinction between the constitutional standard and the statutory standard under Title VII.” 168 U. S. App. D. C. 42, 44 n. 2, 612 F. 2d 956, 958 n. 2 (1975). The Civil Service Commissioners, defendants in the District Court, did not petition for writ of certiorari but have filed a brief as respondents. See our Rule 21 (4). We shall at times refer to them as the “federal parties.” Apparently not disputing the applicability of the Griggs and Title VII standards in resolving this case, petitioners presented issues going only to whether Griggs v. Duke Power Co., 401 U. S. 424 (1971), had been misapplied by the Court of Appeals. See, e. g., Silber v. United States, 370 U. S. 717 (1962); Carpenters v. United States, 330 U. S. 395, 412 (1947); Sibbach v. Wilson & Co., 312 U. S. 1, 16 (1941); Mahler v. Eby, 264 U. S. 32, 45 (1924); Weems v. United States, 217 U. S. 349, 362 (1910). Although Title VII standards have dominated this case, the statute was not applicable to federal employees when the complaint was filed; and although the 1972 amendments extending the Title to reach Government employees were adopted prior to the District Court’s judgment, the complaint was not amended to state a claim under that Title, nor did the case thereafter proceed as a Title VII case. Respondents’ motion for partial summary judgment, filed after the 1972 amendments, rested solely on constitutional grounds; and the Court of Appeals ruled that the motion should have been granted. At the oral argument before this Court, when respondents’ counsel was asked whether “this is just a purely Title VII case as it comes to us from the Court of Appeals without any constitutional overtones,” counsel responded: “My trouble honestly with that proposition is the procedural requirements to get into court under Title VII, and this case has not met them.” Tr. of Oral Arg. 66. To the extent that Palmer suggests a generally applicable proposition that legislative purpose is irrelevant in constitutional adjudication, our prior cases — as indicated in the text — are to the contrary; and very shortly after Palmer, all Members of the Court majority in that case joined the Court’s opinion in Lemon v. Kurtzman, 403 U. S. 602 (1971), which dealt with the issue of public financing for private schools and which announced, as the Court had several times before, that the validity of public aid to church-related schools includes close inquiry into the purpose of the challenged statute. Cases dealing with public employment include: Chance v. Board of Examiners, 458 F. 2d 1167, 1176-1177 (CA2 1972); Castro v. Beecher, 459 F. 2d 725, 732-733 (CA1 1972); Bridgeport Guardians v. Bridgeport Civil Service Comm’n, 482 F. 2d 1333, 1337 (CA2 1973); Harper v. Mayor of Baltimore, 359 F. Supp. 1187, 1200 (Md.), aff’d in pertinent part sub nom. Harper v. Kloster, 486 F. 2d 1134 (CA4 1973); Douglas v. Hampton, 168 U. S. App. D. C. 62, 67, 512 F. 2d 976, 981 (1975); but cf. Tyler v. Vickery, 517 F. 2d 1089, 1096-1097 (CA5 1975), cert. pending, No. 75-1026. There are also District Court cases: Wade v. Mississippi Cooperative Extension Serv., 372 F. Supp. 126, 143 (ND Miss. 1974); Arnold v. Ballard, 390 F. Supp. 723, 736, 737 (ND Ohio 1975); United States v. City of Chicago, 385 F. Supp. 543, 553 (ND Ill. 1974); Fowler v. Schwarzwalder, 351 F. Supp. 721, 724 (Minn. 1972), rev’d on other grounds, 498 F. 2d 143 (CA8 1974). In other contexts there are Norwalk CORE v. Norwalk Redevelopment Agency, 395 F. 2d 920 (CA2 1968) (urban renewal); Kennedy Park Homes Assn. v. City of Lackawanna, 436 F. 2d 108, 114 (CA2 1970), cert. denied, 401 U. S. 1010 (1971) (zoning); Southern Alameda Spanish Speaking Organization v. Union City, 424 F. 2d 291 (CA9 1970) (dictum) (zoning); Metropolitan H. D. Corp. v. Village of Arlington Heights, 517 F. 2d 409 (CA7), cert. granted, 423 U. S. 1030 (1975) (zoning); Gautreaux v. Romney, 448 F. 2d 731, 738 (CA7 1971) (dictum) (public housing); Crow v. Brown, 332 F. Supp. 382, 391 (ND Ga. 1971), aff’d, 457 F. 2d 788 (CA5 1972) (public housing); Hawkins v. Town of Shaw, 437 F. 2d 1286 (CA5 1971), aff’d on rehearing en banc, 461 F. 2d 1171 (1972) (municipal services). It appears beyond doubt by now that there is no single method for appropriately validating employment tests for their relationship to job performance. Professional standards developed by the American Psychological Association in its Standards for Educational and Psychological Tests and Manuals (1966), accept three basic methods of validation: “empirical” or “criterion” validity (demonstrated by identifying criteria that indicate successful job performance and then correlating test scores and the criteria so identified) ; “construct” validity (demonstrated by examinations structured to measure the degree to which job applicants have identifiable characteristics that have been determined to be important in successful job performance); and “content” validity (demonstrated by tests whose content closely approximates tasks to be performed on the job by the applicant). These standards have been relied upon by the Equal Employment Opportunity Commission in fashioning its Guidelines on Employee Selection Procedures, 29 CFR pt. 1607 (1975), and have been judicially noted in cases where validation of employment tests has been in issue. See, e. g Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Kennedy delivered the opinion of the Court. The principal question before us is whether the three-factor apportionment formula of the Michigan single business tax (SBT), Mich. Comp. Laws §208.1 et seq. (1979), violates either the Due Process Clause or the Commerce Clause of the Federal Constitution. The applicability of a three-factor formula to a state income tax is well settled, but we have not considered whether a similar apportionment formula may be applied to a value added tax (VAT). We granted certiorari to consider this question and to determine whether the Michigan SBT discriminates against out-of-state businesses. r — < Although in Europe and Latin America VAT s are common, see Lindholm, The Origin of the Value-Added Tax, 6 J. Corp. L. 11 (1980); Due, Economics of the Value Added Tax, 6 J. Corp. L. 61 (1980), in the United States they are much studied but little used. Michigan is the first and, the parties tell us, the only State to have enacted a VAT as a tax on business activity. We begin with a description of value added and VAT’s in general, and then discuss the Michigan SBT. A Value added is an economic concept. “Value added is defined as the increase in the value of goods and services brought about by whatever a business does to them between the time of purchase and the time of sale.” Haughey, The Economic Logic of the Single Business Tax, 22 Wayne L. Rev. 1017, 1018 (1976) (hereinafter Haughey). The value a business adds to a single product is “the difference between the value of the product at sale and the cost of goods purchased from other businesses that went into the product.” Taxation and Economic Policy Office, Michigan Department of Treasury, Analysis of the Michigan Single Business Tax 20-21 (1985) (hereinafter SBT Analysis). It follows that the sale price of a product is the total of all value added by each step of the production process to that point. “The value added of a loaf of bread is the sum of the value contributed at each stage of the production and distribution process. Among others, it includes the contribution of the farmer, miller, baker, wholesaler and retailer.” Haughey 1019. A business “adds value by handling or processing these [goods] with its labor force, machinery, buildings and capital.” R. Kleine, Advisory Commission on Intergovernmental Relations, The Michigan Single Business Tax: A Different Approach to State Business Taxation 1 (1978) (hereinafter Kleine). In this litigation, value added usually refers to the activities of a single business enterprise. The term can, however, be used with regard to a single product, or even an entire economy. “[Value added] is a means of consistently measuring the size of business firms and other economic enterprises comprising the total economy.... Gross National Product is virtually equivalent to national value added.” Haughey 1017. One of the acknowledged advantages of value added as a measure of taxation is its neutrality. A VAT is neutral in the sense that it taxes all business activity alike: Under a pure VAT, all forms of business organization (corporation, partnership, proprietorship), all types of financing (debt, equity) and all methods of production (capital intensive, labor intensive) bear the same tax burden. “[T]ax factors are minimized in business decisions; inherent advantages and relative efficiencies are allowed to operate in the market economy with minimum tax distortions. “This neutrality of a value-added tax is in notable contrast to the effects of both the corporation income tax and the payroll taxes. The former, by definition, is applied only to corporations and varies with their reliance on equity rather than debt capital and the efficiency with which they use equity capital — that is, their net profits.” Smith, Value-added tax: the case for, 48 Harv. Bus. Rev. 77, 79 (Nov.-Dec. 1970). Though neutral in theory, VAT’s often depart in practice from the pure value added model because of special exemptions, deductions, and other adjustments. These features can eliminate much of the claim to neutrality. See generally The Value-Added Tax: Lessons from Europe (H. Aaron ed. 1981). A VAT differs in important respects from a corporate income tax. A corporate income tax is based on the philosophy of ability to pay, as it consists of some portion of the profit remaining after a company has provided for its workers, suppliers, and other creditors. A VAT, on the other hand, is a much broader measure of a firm’s total business activity. Even if a business entity is unprofitable, under normal circumstances it adds value to its products and, as a consequence, will owe some VAT. Because value added is a measure of actual business activity, a VAT correlates more closely to the volume of governmental services received by the taxpayer than does an income tax. Further, because value added does not fluctuate as widely as net income, a VAT provides a more stable source of revenue than the corporate income tax. See generally Kleine 3, figure 1. “‘The logic or rationale of the [VAT] rests squarely on the benefits received principle of taxation — government services are essential to the operation of any business enterprise... and a part of these public service costs should properly be included in the cost of doing business.’” Id., at 4 (citation omitted). The SBT Analysis, at 20-21, provides us with the following simplified example of how value added is determined. Assume a bakery’s sole revenue comes from the sale of bread. The bakery’s costs consist of materials (flour, sugar, spices, utilities), labor (baker, sales clerk), capital (building, mixer, utensils, oven), and credit (interest paid on loans). Any excess of revenues over costs represents profit. Thus: Revenues = Cost of Labor + Cost of Materials + Depreciation + Interest + Profit. Because value added is defined as the difference between the value of products sold (revenues), and the cost of materials going into the products, we can represent value added (for the entire firm) by a second simple equation: Value added = Revenues — Cost of Materials. The same result is reached by another common method. If we subtract Cost of Materials from each side of the first equation above, we have: Revenues - Cost of Materials = Cost of Labor + Depreciation + Interest + Profit. So in practice value added can be calculated as either Revenues - Cost of Materials; or Cost of Labor + Depreciation + Interest + Profit. Not surprisingly, these are referred to as the “subtraction” and the “addition” methods. Each provides an identical measurement of a taxpayer’s value added. Once value added is determined, the VAT is assessed as a percentage of the value added for the relevant fiscal period. B The Michigan SBT went into effect on January 1, 1976. 1975 Mich. Pub. Acts 228. The SBT replaced seven different business taxes. Kleine 22; Brief for Respondent 8. Before 1976, a typical manufacturer with business activity in Michigan would have been subject to a franchise tax, an income tax, an intangible property tax, and an ad valorem property tax upon inventories. Mitchell, Taxes Repealed and Amended, 22 Wayne L. Rev. 1029 (1976); Brief for Respondent 8-9. After enactment of the SBT, the same manufacturer would pay only one tax. The Michigan SBT is an addition method VAT, although it inevitably permits various exclusions, exemptions, and adjustments that depart from the simple value added examples described above. Subject to exemptions contained at Mich. Comp. Laws §208.35 (1979), the Michigan SBT is levied against any person with “business activity” within the State of Michigan. §208.31(1). In order to calculate the amount of a taxpayer’s SBT the taxpayer must, first, determine its total tax base. The total tax base consists of the taxpayer’s value added, calculated by the addition method: Cost of Labor + Depreciation + Interest + Profit. Under §208.9, the taxpayer begins with federal taxable income (representing profit), adds other elements that reflect consumption of labor and capital including compensation, depreciation, dividends, and interest paid by the taxpayer, and makes other detailed adjustments. Second, if a taxpayer does business both within and without Michigan, it must determine the portion of its total value added attributable to Michigan. That portion, the crux of this case, is the average of three ratios: (1) Michigan payroll to total payroll, (2) Michigan property to total property, and (3) Michigan sales to total sales. §§208.45, 208.46, 208.49, 208.51. The total tax base is multiplied by the portion of business activity attributable to Michigan (under the three-factor formula), and the result, subject to several further adjustments, is the taxpayer’s “adjusted tax base.” §208.31(2). Two further adjustments are relevant here: § 208.23(a), which permits a taxpayer to deduct a portion of its capital acquisitions, and §208.31(5), which permits a labor-intensive taxpayer to reduce its adjusted tax base by a percentage equal to the percentage by which compensation exceeds 63% of the total tax base, but with such reduction not to exceed a maximum of 37%. Actual tax liability equals the adjusted tax base multiplied by a tax rate of 2.35%. II Trinova, an Ohio corporation, manufactures automobile components. Its principal office is located in Maumee, Ohio, a suburb of Toledo located near the Michigan border. During 1980, the tax year in question, Trinova maintained a fixed presence in Michigan: a sales office of 14 employees who solicited orders, maintained contact with Trinova’s Michigan customers, and performed clerical work. Michigan, with its automobile industry, was a major market for Trinova’s products. Indeed, Trinova made $103,981,354 worth of sales to Michigan during 1980, 26.5892% of its total sales of $391,065,866. Trinova calculated its 1980 SBT adjusted tax base as follows: U. S. taxable income (loss) ($42,466,114) Add: Compensation $226,356,271 Depreciation $23,262,909 Dividends, interest, and royalties paid $22,908,950 Other $549,526 Subtotal $230,611,542 Subtract: Dividends, interest, and royalties received ($9,486,223) Total Tax Base $221,125,319 Apportionment: Payroll Factor 0.2328% Property Factor 0.0930% Sales Factor 26.5892% Average Factor 8.9717% Apportioned Tax Base: $221,125,319 x 8.9717% = $19,838,700 See 433 Mich. 141, 150-152, 445 N. W. 2d 428, 431-433 (1989). Trinova further adjusted its tax base by subtracting a capital acquisition deduction ($9,063) and by taking the maximum (37%) reduction for labor-intensive taxpayers. These adjustments resulted in a 1980 adjusted tax base of $12,492,671. When multiplied by the tax rate of 2.35%, Trinova’s tax liability amounted to $293,578 ($12,492,671 x 2.35%). Trinova timely filed its return and paid its tax liability. In 1985, a Michigan intermediate Court of Appeals ruled that taxpayers similarly situated to Trinova were entitled to “relief” under Mich. Comp. Laws §208.69 (1979), a provision of the SBT. Jones & Laughlin Steel Corp. v. Department of Treasury, 145 Mich. App. 405, 377 N. W. 2d 397, leave to appeal and reconsideration denied, 424 Mich. 895 (1986). At the time, §208.69 provided that if the apportionment provisions of the SBT did not “fairly represent the extent of the taxpayer’s business activity” in Michigan, the taxpayer could, among other alternatives, petition for the employment of “any other method to effectuate an equitable allocation and apportionment of the taxpayer’s tax base.” Soon after the decision in Jones & Laughlin, Trinova filed an amended return and refund claim for the 1980 tax year. Based on the relief granted in Jones & Laughlin, Trinova proposed that despite admitted company-wide value added of $221 million and Michigan sales of over $100 million, for purposes of the Michigan SBT it should be treated as if it had negative total value added. Value added apportioned to Michigan would also have been negative, and Trinova would have been entitled to a refund for its entire 1980 SBT payment. Upon denial of relief by the Michigan Department of Treasury, Trinova sued for a refund in the Michigan Court of Claims, which ruled in Trinova’s favor on the authority of Jones & Laughlin. No. 86-10430-CM (May 5, 1987); App. to Pet. for Cert. 42a-51a. While the Department of Treasury’s appeal was pending in the Michigan Court of Appeals, the legislature amended §208.69. 1987 Mich. Pub. Acts 39. The amended §208.69 creates a presumption that the statutory apportionment formula fairly represents the taxpayer’s business activity in Michigan unless the adjusted tax base meets one of two tests, neither of which Trinova could satisfy, and which do not merit discussion here. See Mich. Comp. Laws Ann. §208.69(3) (West Supp. 1990). The Court of Appeals referred to the legislature’s statement that its Act was intended to be “curative, expressing the original intent of the legislature that the single business tax... is an indivisible value added type of tax and not a combination or series of several smaller taxes and that relief from formulary apportionment should be granted only under extraordinary circumstances.” 1987 Mich. Pub. Acts 39, §2. Relying upon this language, the Court of Appeals determined that the amendment was to be given retroactive effect as a “remedial and procedural” statute and that Trinova was not entitled to statutory relief. 166 Mich. App. 656, 666, 421 N. W. 2d 258, 262 (1988). The Michigan Supreme Court affirmed the Court of Appeals. 433 Mich. 141, 445 N. W. 2d 428 (1989). Without addressing retroactive application of the amendments to §208.69, it construed §208.69 as a “constitutional ‘circuit breaker’ ” to be applied only if required in order to save the SBT against unconstitutional application. Id., at 156, 445 N. W. 2d, at 434. The court then upheld the SBT against Trinova’s federal constitutional challenges. The Michigan Supreme Court noted that formulary apportionment of income taxes is uncontroversial and that it did “not believe that ‘business activity’ as defined under the [SBT] is susceptible to accurate analysis when only one component of the total business effort is examined.” Id., at 163, 445 N. W. 2d, at 438. The court concluded that Trinova’s averaged ratios of payroll, property, and sales are a fair representation of the extent of its business activity in Michigan, making it ineligible for relief on statutory or constitutional grounds. Id., at 163-166, 445 N. W. 2d, at 438-439. We granted Trinova’s petition for a writ of certiorari. 494 U. S. 1015 (1990). 1 — i I — 1 I — I The principles which govern the validity of state taxes levied upon multistate businesses seek to accommodate the necessary abstractions of tax theory to the realities of the marketplace. Under the test stated in Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 279 (1977), we will sustain a tax against Commerce Clause challenge so long as “the tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided. by the State.” We applied this four-part test in later cases addressing a wide variety of taxes. See Goldberg v. Sweet, 488 U. S. 252, 260, n. 12 (1989) (citing applications in cases involving sales, severance, use, corporate income, and business and occupation taxes). In Complete Auto, we renounced the formalistic approach of Spector Motor Service, Inc. v. O’Connor, 340 U. S. 602 (1951), which had prohibited a State from taxing the privilege of doing business in the State, treating it as a tax upon interstate commerce and so beyond the authority of the State. We seek to avoid formalism and to rely upon a “consistent and rational method of inquiry [focusing ón] the practical effect of a challenged tax.” Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U. S. 425, 443 (1980). The Complete Auto test, while responsive to Commerce Clause dictates, encompasses as well the due process requirement that there be “a ‘minimal connection’ between the interstate activities and the taxing State, and a rational relationship between the income attributed to the State and the intrastate values of the enterprise.” Mobil Oil Corp., supra, at 436- 437; see also Amerada Hess Corp. v. Director, Div. of Taxation, N. J. Dept. of Treasury, 490 U. S. 66, 80 (1989) (Scalia, J., concurring). In this Court, Trinova does not dispute that its business activities have a substantial nexus with Michigan and subject it to the State’s taxing authority. Nor does Trinova argue that the amount of tax it is required to pay bears no fair relation to the services provided by the State. Complete Auto, supra, at 279. Trinova instead contends that Michigan’s SBT fails the other two prongs of the Complete Auto test: that the SBT is not fairly apportioned as applied to Trinova and that the tax discriminates against interstate commerce. We consider these claims and begin with the matter of apportionment. A Trinova’s claim that apportionment of the tax is unconstitutional concentrates on the elements of the apportionment formula. The original rationale for apportionment of income was the difficulty of identifying the geographic source of the income earned by a multistate enterprise. See Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, 120-121 (1920) (legislature “faced with the impossibility of allocating specifically the profits earned by the [taxpayer’s] processes conducted within its borders”). As we stated the problem in Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159, 192 (1983): “Allocating income among various taxing jurisdictions bears some resemblance... to slicing a shadow.” Trinova argues that because its SBT tax base is composed in large part of compensation and depreciation, elements which can be assigned to a geographic source, we must reject apportionment altogether. We can accept the premise that apportionment is permitted only when precise geographic measurement is not feasible, for to allow apportionment where there is no practical or theoretical justification could provide the opportunity for a State to export tax burdens and import tax revenues. The Commerce Clause prohibits this competitive mischief. The issue becomes whether, without an apportionment formula, Michigan can assign the SBT tax base and its principal components to separate geographic locations and to separate accounts in each State. Michigan has decided it cannot do so without serious theoretical and practical difficulty, and upon review of the case we accept that determination. We reject at the outset, however, arguments by Michigan and some amici curiae that the Michigan SBT can be analyzed as a tax upon “business activity.” Brief for Council of State Governments et al. as Amici Curiae 11. The statute does not say that the SBT is a tax upon business activity, but rather that it is a “tax of 2.35% upon the adjusted tax base of every person with business activity in this state which is allocated or apportioned to this state.” Mich. Comp. Laws §208.31(1) (1979) (emphasis added). While Michigan business activity is a threshold requirement for the tax, and value added is its measure, labeling the SBT a tax on “business activity” does not permit us to forgo examination of the actual tax base and apportionment provisions. “A tax on sleeping measured by the number of pairs of shoes you have in your closet is a tax on shoes.” Jenkins, State Taxation of Interstate Commerce, 27 Tenn. L. Rev. 239, 242 (1960). Trinova errs in the opposite direction. It would dissect the tax base as if the SBT were three separate and independent taxes: a tax on compensation, a tax on depreciation, and a tax on income, each apportioned. Trinova insists that compensation and depreciation can be located and can be separated from the total value added calculation. As a result, Trinova would be taxed upon its Michigan compensation and Michigan depreciation. It would owe no additional tax upon income apportionable to Michigan, because it had no income during the relevant tax year. This characterization, and with it Trinova’s constitutional argument, fails. Doubtless Trinova can identify the location of its plant and equipment and much of its compensation. The Michigan SBT, however, is not three separate and independent taxes, and Trinova cannot purport to identify the geographic source of value added by assuming that two elements can be located in a single State while the third cannot. Trinova’s proposed apportionment for the 1980 tax year, n. 8, supra, provides a good example of the problems that accompany its argument. In 1980, Trinova’s company-wide value added amounted to much less than its compensation plus depreciation. In short, Trinova was unprofitable. Under a VAT, however, tax becomes due in any event. Trinova’s approach would require us to conclude that Trinova added value at the factory through the consumption of capital and labor, but that its products somehow lost value outside of this process, perhaps between the time they left the factory and the time they were delivered to customers in Michigan. This approach is incompatible with the rationale of a VAT and is unsupported in the record. For all this record shows, Trinova’s production operations might have added little value and its sales offices might have added significant value, through superior marketing skill, liaison between the company and its customers, or mere fortuity. See Moorman Mfg. Co. v. Bair, 437 U. S. 267, 272 (1978) (record lacked analysis of what portion of profits was apportionable to sales, to manufacturing, or to other phase of company’s operations). But we need not rely upon Trinova’s 14 Michigan sales personnel as the source of all the value added that can be apportioned fairly to Michigan. In a unitary enterprise, compensation, depreciation, and profit are not independent variables to be adjusted without reference to each other. If Trinova had paid an additional $100 million in compensation during 1980, there is no way of knowing whether, or to what extent, value added would have increased. In fact, value added would not have increased so long as revenues did not increase. These elements of value added are inextricable, codependent variables. Without Trinova’s $100 million in 1980 Michigan sales, the company’s value added would have been lower to a remarkable degree. The market demand that sustained those sales did not arise solely, perhaps not even substantially, from the activities of Trinova’s 14 Michigan sales personnel. But there can be little doubt that requirements of the Michigan market determined the direction of Trinova’s design, production, and distribution process. By serving that market and meeting its demands, Trinova generated value added in the sums that it did. We can and must assume that Michigan sales were a part of the company’s essential economic strategies and were an integral part of company-wide value added. It distorts the tax both in application and theory to confine value added consequences of the Michigan market solely to the labor and capital expended by the resident sales force. Trinova’s attempted characterization is arguable only because Michigan calculates value added by the addition method. The addition and subtraction methods of calculating value, however, are but two different paths to the same result. See n. 2, supra. Had Michigan calculated the SBT tax base by the subtraction method, reporting total revenues minus total cost of materials, Trinova’s characterization would collapse of its own weight. Trinova could geographically locate its revenues and even determine where it purchased its materials. The Michigan apportionment formula assumes as much. But were Trinova to calculate value added based upon the location of its revenues, it would apportion a much greater share of its value added to Michigan (26.5892%) than was apportioned under Michigan’s three-factor formula (8.9717%). An apportionment of value added based solely on the source of revenues is no less justifiable than an apportionment based solely upon the location of compensation or depreciation. The difference between the addition and subtraction methods is one of form and lacks constitutional significance. Michigan chose the addition method of calculating value added as a convenience to taxpayers, for whom federal taxable income provided an easy starting point. Kleine 6-7 (discussing advantages of addition method); SBT Analysis 21 (same). The Constitution does not require a formalistic analysis resulting in a penalty for Michigan’s selection of an easier calculation method for its taxpayers. Both methods of calculation, moreover, illustrate the justification for the State’s adoption of an apportionment formula. Under either method, value added includes a remainder or residual that cannot be located with economic precision. Under the addition method, value added contains the element of income, one calculated by and dependent upon factors (revenues minus total costs) not included in the addition method equation; under the subtraction method, value added is itself a remainder, no more assignable than income. It would be impractical to locate value added by a geographic test. We thus agree with the Michigan Legislature’s statement that the SBT is not, for apportionment purposes, “a combination or series of several smaller taxes,” 1987 Mich. Pub. Acts 39, § 2, but an “indivisible,” ibid., tax upon a different, bona fide measure of business activity, the value added. This conclusion is no different from the one we have reached in upholding the validity of state apportionment of income taxes. As with a VAT, the discrete components of a state income tax may appear in isolation susceptible of geographic designation. Nevertheless, since Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113 (1920), we have recognized the impracticability of assuming that all income can be assigned to a single source. In this respect, Trinova’s argument becomes a familiar and often rejected genre of taxpayer challenge: “[A]pportionability often has been challenged by the contention that... the source of [particular] income may be ascertained by separate geographical accounting. The Court has rejected that contention so long as the intrastate and extrastate activities formed part of a single unitary business. See Butler Bros. v. McColgan, 315 U. S. 501, 506-508 (1942); Ford Motor Co. v. Beauchamp, 308 U. S. 331, 336 (1939); cf. Moorman Mfg. Co. v. Bair, 437 U. S., at 272. In these circumstances, the Court has noted that separate accounting, while it purports to isolate portions of income received in various States, may fail to account for contributions to income resulting from functional integration, centralization of management, and economies of scale. Butler Bros. v. McColgan, 315 U. S., at 508-509. Because these factors of profitability arise from the operation of the business as a whole, it becomes misleading to characterize the income of the business as having a single identifiable ‘source.’ Although separate geographical accounting may be useful for internal auditing, for purposes of state taxation it is not constitutionally required.” Mobil Oil Corp., 445 U. S., at 438. In a recent challenge to this unitary business principle, we rejected the argument that particular assignable costs of a business should be excluded from a broader tax base. Amerada Hess Corp. v. Director, Div. of Taxation, N. J. Dept. of Treasury, 490 U. S. 66 (1989). We considered the New Jersey corporate income tax, which used federal taxable income as a benchmark and required certain adjustments (as does the Michigan SBT). New Jersey required oil companies to add back into income any deduction taken for taxes paid under the federal windfall profits tax. The taxpayers objected that the windfall profits tax is “an exclusively out-of-state expense because it is associated with the production of oil outside New Jersey.” Id., at 74. In like manner, Trinova objects to the SBT’s requirement that it add compensation and depreciation to federal taxable income on the grounds that these are, with limited exception, out-of-state expenses. In Amerada Hess Corp. we rejected outright the idea that geographically assignable costs of production must be excluded from an apportionment of income: “[J]ust as each [taxpayer’s] oil-producing revenue — as part of a unitary business — is not confined to a single State, Exxon Corp., 447 U. S., at 226,... so too the costs of producing this revenue are unitary in nature. See Container Corp., 463 U. S., at 182 (the costs of a unitary business cannot be deemed confined to the locality in which they are incurred).” Ibid. The reasoning of Amerada Hess Corp. applies with equal force to the case here. The same factors that prevent determination of the geographic location where income is generated, factors such as functional integration, centralization of management, and economies of scale, make it impossible to determine the location of value added with exact precision. In concluding that Michigan can apportion the SBT, we merely reaffirm what we have written before: “In the case of a more-or-less integrated business enterprise operating in more than one State,... arriving at precise territorial allocations of ‘value’ is often an elusive goal, both in theory and in practice.” Container Corp., 463 U. S., at 164. B Having determined that Michigan’s SBT attempts to tax a base that cannot be assigned to one location with any precision, and that apportionment is proper, we must next consider whether Michigan’s apportionment formula for Trinova’s value added is fair. Container Corp. states our test for fair income apportionment: “The first, and again obvious, component of fairness in an apportionment formula is what might be called internal consistency — that is, the formula must be such that, if applied by every jurisdiction, it would result in no more than all of the unitary business’ income being taxed. The second and more difficult requirement is what might be called external consistency — the factor or factors used in the apportionment formula must actually reflect a reasonable sense of how income is generated.” Id., at 169. Trinova does not contest the internal consistency of the SBT’s apportionment formula, and we need not consider that question. Instead, Trinova argues that the SBT apportionment formula fails the external consistency test. In order to prevail on such a challenge, an income taxpayer must prove “by ‘clear and cogent evidence’ that the income attributed to the State is in fact ‘out of all appropriate proportions to the business transacted... in that State,’ [Hans Rees’ Sons, Inc.,] 283 U. S., at 135, or has ‘led to a grossly distorted result,’ [Norfolk & Western R. Co.,] 390 U. S., at 326.” Moorman Mfg. Co., 437 U. S., at 274. We conclude that the same test applies to apportionment of a VAT. Trinova must demonstrate that, in the context of a VAT, there is no rational relationship between the tax base measure attributed to the State and the contribution of Michigan business activity to the entire value added process. See Container Corp., supra, at 180-181. The Michigan SBT uses the same three-factor apportionment formula we first approved for apportionment of income in Butler Brothers v. McColgan, 315 U. S. 501 (1942). This standard has become “something of a benchmark against which other apportionment formulas are judged.” Container Corp., supra, at 170; see also Moorman Mfg. Co., supra, at 282 (Blackmun, J., dissenting); id., at 283-284 (Powell, J., dissenting). Although the one-third weight given to each of the three factors — payroll, property, and sales — is not a precise apportionment for every case, the formula “has gained wide approval precisely because payroll, property, and sales appear in combination to reflect a very large share of the activities by which value is generated.” Container Corp., supra, at 183 (emphasis added). The three-factor formula is widely used and is included in the Uniform Division of Income for Tax Purposes Act, 7A U. L. A. 331 (1990 Cum. Supp.) (approved in 1957 by the National Conference of Commissioners on Uniform State Laws and the American Bar Association). Trinova argues that on the facts of this case, the three-factor formula leads to a distorted result, out of all proportion to the business done by Trinova in Michigan. Trinova’s Michigan payroll constituted 0.2328% of total payroll, its Michigan property constituted 0.0930% of total property, and its Michigan sales constituted 26.5892% of total sales. The three-factor formula averages these ratios, with the result that 8.9717% of Trinova’s value added, or $19,838,700, is assigned to Michigan. Because Trinova is a labor-intensive taxpayer, and can deduct capital acquisitions, the tax base is further reduced to $12,492,671. In this Court, Trinova proposes an alternative two-factor apportionment, excluding the sales factor. Under the two-factor formula, only 0.1629% of Trinova’s value added, or $360,213, would be assigned to Michigan. Brief for Petitioner 33-34. Although the three-factor formula “can be justified as a rough, practical approximation of the distribution of either a corporation’s sources of income or the social costs which it generates,” General Motors Corp. v. District of Columbia, 380 U. S. 553, 561 (1965), Trinova argues that the formula does not reflect how the value added tax base is generated. The principal flaw, it contends, is that the formula includes a sales factor. “Sales have no relationship to, and add nothing to, the value that [compensation and depreciable plant] contribute to the tax base in Michigan.” Brief for Petitioner 31. Trinova’s position finds some support among economists. See Barlow & Connell, The Single Business Tax, in Michigan’s Fiscal and Economic Structure 673, 704 (H. Brazer ed. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Stewart delivered the opinion of the Court. The issue in this case is whether the Securities and Exchange Commission (Commission) is required to establish scienter as an element of a civil enforcement action to enjoin violations of § 17 (a) of the Securities Act of 1933 (1933 Act), § 10 (b) of the Securities Exchange Act of 1934 (1934 Act), and Commission Rule 10b-5 promulgated under that section of the 1934 Act. I When the events giving rise to this enforcement proceeding occurred, the petitioner was a managerial employee at E. L. Aaron & Co. (the firm), a registered broker-dealer with its principal office in New York City. Among other responsibilities at the firm, the petitioner was charged with supervising the sales made by its registered representatives and maintaining the so-called “due diligence” files for those securities in which the firm served as a market maker. One such security was the common stock of Lawn-A-Mat Chemical & Equipment Corp. (Lawn-A-Mat), a company engaged in the business of selling lawn-care franchises and supplying its franchisees with products and equipment. Between November 1974 and September 1975, two registered representatives of the firm, Norman Schreiber and Donald Jacobson, conducted a sales campaign in which they repeatedly made false and misleading statements in an effort to solicit orders for the purchase of Lawn-A-Mat common stock. During the course of this promotion, Schreiber and Jacobson informed prospective investors that Lawn-A-Mat was planning or in the process of manufacturing a new type of small car and tractor, and that the car would be marketed within six weeks. Lawn-A-Mat, however, had no such plans. The two registered representatives also made projections of substantial increases in the price of Lawn-A-Mat common stock and optimistic statements concerning the company’s financial condition. These projections and statements were without basis in fact, since Lawn-A-Mat was losing money during the relevant period. Upon receiving several complaints from prospective investors, an officer of Lawn-A-Mat informed Schreiber and Jacobson that their statements were false and misleading and requested them to cease making such statements. This request went unheeded, Thereafter, Milton Kean, an attorney representing Lawn-A-Mat, communicated with the petitioner twice by telephone. In these conversations, Kean informed the petitioner that Schreiber and Jacobson were making false and misleading statements and described the substance of what they were saying. The petitioner, in addition to being so informed by Kean, had reason to know that the statements were false, since he knew that the reports in Lawn-A-Mat’s due diligence file indicated a deteriorating financial condition and revealed no plans for manufacturing a new car and tractor. Although assuring Kean that the misrepresentations would cease, the petitioner took no affirmative steps to prevent their recurrence. The petitioner’s only response to the telephone calls was to inform Jacobson of Kean’s complaint and to direct him to communicate with Kean. Otherwise, the petitioner did nothing to prevent the two registered representatives under his direct supervision from continuing to make false and misleading statements in promoting Lawn-A-Mat common stock. In February 1976, the Commission filed a complaint in the District Court for the Southern District of New York against the petitioner and seven other defendants in connection with the offer and sale of Lawn-A-Mat common stock. In seeking preliminary and final injunctive relief pursuant to § 20 (b) of the 1933 Act and § 21 (d) of the 1934 Act, the Commission alleged that the petitioner had violated and aided and abetted violations of three provisions — § 17 (a) of the 1933 Act, § 10 (b) of the 1934 Act, and Commission Rule 10b-5 promulgated under that section of the 1934 Act. The gravamen of the charges against the petitioner was that he knew or had reason to know that the employees under his supervision were engaged in fraudulent practices, but failed to take adequate steps to prevent those practices from continuing. Before commencement of the trial, all the defendants except the petitioner consented to the entry of permanent injunctions against them. Following a bench trial, the District Court found that the petitioner had violated and aided and abetted violations of § 17 (a), § 10 (b), and Rule 10b-5 during the Lawn-A-Mat sales campaign and enjoined him from future violations of these provisions. The District Court’s finding of past violations was based upon its factual finding that the petitioner had intentionally failed to discharge his supervisory responsibility to stop Schreiber and Jacobson from making statements to prospective investors that the petitioner knew to be false and misleading. Although noting that negligence alone might suffice to establish a violation of the relevant provisions in a Commission enforcement action, the District Court concluded that the fact that the petitioner “intentionally failed to terminate the false and misleading statements made by Schreiber and Jacobson, knowing them to be fraudulent, is sufficient to establish his scienter under the securities laws.” As to the remedy, even though the firm had since gone bankrupt and the petitioner was no longer working for a broker-dealer, the District Court reasoned that injunctive relief was warranted in light of “the nature and extent of the violations..., the [petitioner’s] failure to recognize the wrongful nature of his conduct and the likelihood of the [petitioner’s] repeating his violative conduct.” The Court of Appeals for the Second Circuit affirmed the judgment. 605 F. 2d 612. Declining to reach the question whether the petitioner’s conduct would support a finding of scienter, the Court of Appeals held instead that when the Commission is seeking injunctive relief, “proof of negligence alone will suffice” to establish a violation of § 17 (a), § 10 (b), and Rule 10b-5. Id., at 619. With regard to § 10 (b) and Rule 10b-5, the Court of Appeals noted that this Court’s opinion in Ernst & Ernst v. Hochfelder, 425 U. S. 185, which held that an allegation of scienter is necessary to state a private cause of action for damages under § 10 (b) and Rule 10b-5, had expressly reserved the question whether scienter must be alleged in a suit for injunctive relief brought by the Commission. Id., at 194, n. 12. The conclusion of the Court of Appeals that the scienter requirement of Hochf elder does not apply to Commission enforcement proceedings was said to find support in the language of § 10 (b), the legislative history of the 1934 Act, the relationship between § 10 (b) and the overall enforcement scheme of the securities laws, and the “compelling distinctions between private damage actions and government injunction actions.” For its holding that sci-enter is not a necessary element in a Commission injunctive action to enforce § 17 (a), the Court of Appeals relied on its earlier decision in SEC v. Coven, 581 F. 2d 1020 (1978). There that court had noted that the language of § 17 (a) contains nothing to suggest a requirement of intent and that, in enacting § 17 (a), Congress had considered a scienter requirement, but instead “opted for liability without willfulness, intent to defraud, or the like.” Id., at 1027-1028. Finally, the Court of Appeals affirmed the District Court’s holding that, under all the facts and circumstances of this case, the Commission was entitled to injunctive relief. 605 F. 2d, at 623-624. We granted certiorari to resolve the conflict in the federal courts as to whether the Commission is required to establish scienter — an intent on the part of the defendant to deceive, manipulate, or defraud — as an element of a Commission enforcement action to enjoin violations of § 17 (a), § 10 (b), and Rule 10b-5. 444 U. S. 914. II The two substantive statutory provisions at issue here are § 17 (a) of the 1933 Act, 48 Stat. 84, as amended, 15 IT. S. C. § 77q (a), and § 10 (b) of the 1934 Act, 48 Stat. 891, 15 U. S. C. § 78j (b). Section 17 (a), which applies only to sellers, provides: “It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly— “(1) to employ any device, scheme, or artifice to defraud, or “(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or “(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.” Section 10 (b), which applies to both buyers and sellers, makes it “unlawful for any person... [t]o use or employ, in connection with the purchase or sale of any security..., any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” Pursuant to its rulemaking power under this section, the Commission promulgated Rule 1 Ob-5, which now provides: “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, “(a) To employ any device, scheme, artifice to defraud, “(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or “(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” 17 CFR § 240.1Ob-5 (1979). The civil enforcement mechanism for these provisions consists of both express and implied remedies. One express remedy is a suit by the Commission for injunctive relief. Section 20 (b) of the 1933 Act, 48 Stat. 86, as amended, as set forth in 15 U. S. C. § 77t (b), provides: “Whenever it shall appear to the Commission that any person is engaged or about to engage in any acts or practices which constitute or will constitute a violation of the provisions of this subchapter [e. g., § 17 (a)], or of any rule or regulation prescribed under authority thereof, it may in its discretion, bring an action in any district court of the United States... to enjoin such acts or practices, and upon a proper showing a permanent or temporary injunction or restraining order shall be granted without bond.” Similarly, § 21 (d) of the 1934 Act, 48 Stat. 900, as amended, 15 U. S. C. § 78u (d), authorizes the Commission to seek injunctive relief whenever it appears that a person “is engaged or is about to engage in acts or practices constituting” a violation of the 1934 Act (e. g., § 10 (b)), or regulations promulgated thereto (e. g., Rule 10b-5), and requires a district court “upon a proper showing” to grant injunctive relief. Another facet of civil enforcement is a private cause of action for money damages. This remedy, unlike the Commission injunctive action, is not expressly authorized by statute, but rather has been judicially implied. See Ernst & Ernst v. Hochfelder, 425 U. S., at 196-197. Although this Court has repeatedly assumed the existence of an implied cause of action under § 10 (b) and Rule 10b-5, see Ernst & Ernst v. Hochfelder, supra; Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 730; Affiliated Ute Citizens v. United States, 406 U. S. 128, 150-154; Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U. S. 6, 13, n. 9, it has not had occasion to address the question whether a private cause of action exists under § 17 (a). See Blue Chip Stamps v. Manor Drug Stores, supra, at 733, n. 6. The issue here is whether the Commission in seeking injunc-tive relief either under § 20 (b) for violations of § 17 (a), or under § 21 (d) for violations of § 10 (b) or Rule 10b-5, is required to establish scienter. Resolution of that issue could depend upon (1) the substantive provisions of -§ 17 (a), § 10 (b), and Rule 10b-5, or (2) the statutory provisions authorizing injunctive relief “upon a proper showing,” § 20 (b) and §21 (d). We turn to an examination of each to determine the extent to which they may require proof of scienter. A In determining whether scienter is a necessary element of a violation of § 10 (b) and Rule 10b-5, we do not write on a clean slate. Rather, the starting point for our inquiry is Ernst & Ernst v. Hochfelder, supra, a case in which the Court concluded that a private cause of action for damages will not lie under § 10 (b) and Rule 10b-5 in the absence of an allegation of scienter. Although the issue presented in the present case was expressly reserved in Hochfelder, supra, at 193, n. 12, we nonetheless must be guided by the reasoning of that decision. The conclusion in Hochfelder that allegations of simple negligence could not sustain a private cause of action for damages under § 10 (b) and Rule 10b-5 rested on several grounds. The most important was the plain meaning of the language of § 10 (b). It was the view of the Court that the terms “manipulative,” “device,” and “contrivance” — whether given their commonly accepted meaning or read as terms of art — quite clearly evinced a congressional intent to proscribe only “knowing or intentional misconduct.” 425 U. S., at 197-199. This meaning, in fact, was thought to be so unambiguous as to suggest that “further inquiry may be unnecessary.” Id., at 201. The Court in Hochfelder nonetheless found additional support for its holding in both the legislative history of § 10 (b) and the structure of the civil liability provisions in the 1933 and 1934 Acts. The legislative history, though “bereft of any explicit explanation of Congress’ intent,” contained “no indication... that § 10 (b) was intended to proscribe conduct not involving scienter.” Id., at 201-202. Rather, as the Court noted, a spokesman for the drafters of the predecessor of § 10 (b) described its function as a “ ‘catch-all clause to prevent manipulative devices.’ ” Id., at 202. This description, as well as various passages in the Committee Reports concerning the evils to which the 1934 Act was directed, evidenced a purpose to proscribe only knowing or intentional misconduct. Moreover, with regard to the structure of the 1933 and 1934 Acts, the Court observed that in each instance in which Congress had expressly created civil liability, it had specified the standard of liability. To premise civil liability under § 10 (b) on merely negligent conduct, the Court concluded, would run counter to the fact that wherever Congress intended to accomplish that result, it said so expressly and subjected such actions to significant procedural restraints not applicable to § 10 (b). Id., at 206-211. Finally, since the Commission’s rulemaking power was necessarily limited by the ambit of its statutory authority, the Court reasoned that Rule 10b-5 must likewise be restricted to conduct involving scienter. In our view, the rationale of Hochfelder ineluctably leads to the conclusion that scienter is an element of a violation of § 10 (b) and Rule 10b-5, regardless of the identity of the plaintiff or the nature of the relief sought. Two of the three factors relied upon in Hochfelder — the language of § 10 (b) and its legislative history — are applicable whenever a violation of § 10 (b) or Rule 10b-5 is alleged, whether in a private cause of action for damages or in a Commission injunctive action under § 21 (d). In fact, since Hochfelder involved an implied cause of action that was not within the contemplation of the Congress that enacted § 10 (b), id., at 196, it would be quite anomalous in a case like the present one, involving as it does the express remedy Congress created for § 10 (b) violations, not to attach at least as much significance to the fact that the statutory language and its legislative history support a scienter requirement. The Commission argues that Hochfelder, which involved a private cause of action for damages, is not a proper guide in construing § 10 (b) in the present context of a Commission enforcement action for injunctive relief. We are urged instead to look to SEC v. Capital Gains Research Bureau, 375 U. S. 180. That case involved a suit by the Commission for injunc-tive relief to enforce the prohibition in § 206 (2) of the Investment Advisers Act of 1940, 15 U. S. C. § 80b-6, against any act or practice of an investment adviser that “operates as a fraud or deceit upon any client or prospective client.” The injunction sought in Capital Gains was to compel disclosure of a practice known as “scalping,” whereby an investment adviser purchases shares of a given security for his own account shortly before recommending the security to investors as a long-term investment, and then promptly sells the shares at a profit upon the rise in their market value following the recommendation. The issue in Capital Gains was whether in an action for injunctive relief for violations of § 206 (2) the Commission must prove that the defendant acted with an intent to defraud. The Court held that a showing of intent was not required. This conclusion rested upon the fact that the legislative history revealed that the “Investment Advisers Act of 1940... reflects a congressional recognition ‘of the delicate fiduciary nature of an investment advisory relationship/ as well as a congressional intent to eliminate, or at least to expose, all conflicts of interest which might incline an investment adviser — consciously or unconsciously — to render advice which was not disinterested.” 375 U. S., at 191-192 (footnote omitted). To require proof of intent, the Court reasoned, would run counter to the expressed intent of Congress. The Court added that its conclusion was “not in derogation of the common law of fraud.” Id., at 192. Although recognizing that intent to defraud was a necessary element at common law to recover money damages for fraud in an arm’s-length transaction, the Court emphasized that the Commission’s action was not a suit for damages, but rather a suit for an injunction in which the relief sought was the “mild prophylactic” of requiring a fiduciary to disclose his transactions in stocks he was recommending to his clients. Id., at 193. The Court observed that it was not necessary in a suit for “equitable or prophylactic relief” to establish intent, for “[f)raud has a broader meaning in equity [than at law] and intention to defraud or to misrepresent is not a necessary element.” Ibid., quoting W. De Funiak, Handbook of Modern Equity 235 (2d ed. 1956). Moreover, it was not necessary, the Court said, in a suit against a fiduciary such as an investment adviser, to establish all the elements of fraud that would be required in a suit against a party to an arm’s-length transaction. Finally, the Court took cognizance of a “growing recognition by common-law courts that the doctrines of fraud and deceit which developed around transactions involving land and other tangible items of wealth are ill-suited to the sale of such intangibles as advice and securities, and that, accordingly, the doctrines must be adapted to the merchandise in issue.” 375 U. S., at 194. Unwilling to assume that Congress was unaware of these developments at common law, the Court concluded that they “reinforce [d]” its holding that Congress had not sought to require a showing of intent in actions to enjoin violations of §206 (2). Id., at 195. The Commission argues that the emphasis in Capital Gains upon the distinction between fraud at law and in equity should guide a construction of § 10 (b) in this suit for injunctive relief. We cannot, however, draw such guidance from Capital Gains for several reasons. First, wholly apart from its discussion of the judicial treatment of “fraud” at law and in equity, the Court in Capital Gains found strong support in the legislative history for its conclusion that the Commission need not demonstrate intent to enjoin practices in violation of § 206 (2). By contrast, as the Court in Hochfelder noted, the legislative history of § 10 (b) points towards a scienter requirement. Second, it is quite clear that the language in question in Capital Gains, “any... practice... which operates as a fraud or deceit,” (emphasis added) focuses not on the intent of the investment adviser, but rather on the effect of a particular practice. Again, by contrast, the Court in Hoch-felder found that the language of § 10 (b) — particularly the terms “manipulative,” “device,” and “contrivance” — clearly refers to “knowing or intentional misconduct.” Finally, insofar as Capital Gains involved a statutory provision regulating the special fiduciary relationship between an investment adviser and his client, the Court there was dealing with a situation in which intent to defraud would not have been required even in a common-law action for money damages. Section 10 (b), unlike the provision at issue in Capital Gains, applies with equal force to both fiduciary and nonfidueiary transactions in securities. It is our view, in sum, that the controlling precedent here is not Capital Gains, but rather Hochf elder. Accordingly, we conclude that scienter is a necessary element of a violation of § 10 (b) and Rule 10b-5. B In determining whether proof of scienter is a necessary element of a violation of § 17 (a), there is less precedential authority in this Court to guide us. But the controlling principles are well settled. Though cognizant that “Congress intended securities legislation enacted for the purpose of avoiding frauds to be construed ‘not technically and restrictively, but flexibly to effectuate its remedial purposes,'” Affiliated Ute Citizens v. United States, 406 U. S., at 151, quoting, SEC v. Capital Gains Research Bureau, 375 U. S., at 195, the Court has also noted that “generalized references to the ‘remedial purposes’ ” of the securities laws “will not justify reading a provision ‘more broadly than its language and the statutory scheme reasonably permit.’ ” Touche Ross & Co. v. Redington, 442 U. S. 560, 578, quoting, SEC v. Sloan, 436 U. S. 103, 116. Thus, if the language of a provision of the securities laws is sufficiently clear in its context and not at odds with the legislative history, it is unnecessary “to examine the additional considerations of ‘policy’... that may have influenced the lawmakers in their formulation of the statute.” Ernst & Ernst v. Hochfelder, 425 U. S., at 214, n. 33. The language of § 17 (a) strongly suggests that Congress contemplated a scienter requirement under § 17 (a)(1), but not under § 17 (a)(2) or § 17 (a)(3). The language of § 17 (a)(1), which makes it unlawful “to employ any device, scheme, or artifice to defraud,” plainly evinces an intent on the part of Congress to proscribe only knowing or intentional misconduct. Even if it be assumed that the term “defraud” is ambiguous, given its varied meanings at law and in equity, the terms “device,” “scheme,” and “artifice” all connote knowing or intentional practices. Indeed, the term “device,” which also appears in § 10 (b), figured prominently in the Court's conclusion in Hochfelder that the plain meaning of § 10 (b) embraces a scienter requirement. Id., at 199. By contrast, the language of § 17 (a)(2), which prohibits any person from obtaining money or property “by means of any untrue statement of a material fact or any omission to state a material fact,” is devoid of any suggestion whatsoever of a scienter requirement. As a well-known commentator has noted, “[t]here is nothing on the face of Clause (2) itself which smacks of scienter or intent to defraud.” 3 L. Loss, Securities Regulation 1442 (2d ed. 1961). In fact, this Court in Hochfelder pointed out that the similar language of Rule 10b-5 (b) “could be read as proscribing... any type of material misstatement or omission... that has the effect of defrauding investors, whether the wrongdoing was intentional or not.” 425 U. S., at 212. Finally, the language of § 17 (a) (3), under which it is unlawful for any person “to engage in any transaction, practice, or course of business which operates or would operate q,s a fraud or deceit,” (emphasis added) quite plainly focuses upon the effect of particular conduct on members of the investing public, rather than upon the culpability of the person responsible. This reading follows directly from Capital Gains, which attributed to a similarly worded provision in § 206 (2) of the Investment Advisers Act of 1940 a meaning that does not require a “showing [of] deliberate dishonesty as a condition precedent to protecting investors.” 375 U. S., at 200. It is our view, in sum, that the language of § 17 (a) required scienter under § 17 (a)(1), but not under § 17 (a)(2) or § 17 (a) (3). Although the parties have urged the Court to adopt a uniform culpability requirement for the three subparagraphs of § 17 (a), the language of the section is simply not amenable to such an interpretation. This is not the first time that this Court has had occasion to emphasize the distinctions among the three subparagraphs of § 17 (a). In United States v. Naftalin, 441 U. S. 768, 774, the Court noted that each sub-paragraph of § 17 (a) “proscribes a distinct category of misconduct. Each succeeding prohibition is meant to cover additional kinds of illegalities — not to narrow the reach of the prior sections.” (Footnote omitted.) Indeed, since Congress drafted § 17 (a) in such a manner as to compel the conclusion that scienter is required under one subparagraph but not under the other two, it would take a very clear expression in the legislative history of congressional intent to the contrary to justify the conclusion that the statute does not mean what it so plainly seems to say. We find no such expression of congressional intent in the legislative history. The provisions ultimately enacted as § 17 (a) had their genesis in § 13 of identical bills introduced simultaneously in the House and Senate in 1933. H. R. 4314, 73d Cong., 1st Sess. (Mar. 29, 1933); S. 875, 73d Cong., 1st Sess. (Mar. 29, 1933), As originally drafted, § 13 would have made it unlawful for any person “willfully to employ any device, scheme, or artifice to defraud or to obtain money or property by means of any false pretense, representation, or promise, or to engage in any transaction, practice, or course of business... which operates or would operate as a fraud upon the purchaser.” Hearings on these bills were conducted by both the House Interstate and Foreign Commerce Committee and the Senate Banking and Currency Committee. The House and Senate Committees reported out different versions of § 13. The Senate Committee expanded its ambit by including protection against the intentionally fraudulent practices of a “dummy,” a person holding legal or nominal title but under a moral or legal obligation to act for someone else. As amended by the Senate Committee, § 13 made it unlawful for any person “willfully to employ any device, scheme, or artifice or to employ any 'dummy’, or to act as any such 'dummy', with the intent to defraud or to obtain money or property by means of any false pretense, representation, or promise, or to engage in any transaction, practice, or course of business... which operates or would operate as a fraud upon the purchaser...,” See S. 875, 73d Cong., 1st Sess. (Apr. 27, 1933); S. Rep. No. 47, 73d Cong., 1st Sess., 4-5 (1933). The House Committee retained the original version of § 13, except that the word “willfully” was deleted from the beginning of the provision. See H. R. 5480, 73d Cong., 1st Sess., § 16 (a) (May 4, 1933). It also rejected a suggestion that the first clause, “to employ any device, scheme, or artifice,” be modified by the phrase, “with intent to defraud.” See ibid.; Federal Securities Act: Hearings on H. R. 4314 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 1st Sess., 146 (1933). The House and Senate each adopted the version of the provision as reported out by its Committee. The Conference Committee then adopted the House version with a minor modification not relevant here, see H. R. Conf. Rep. No. 152, 73d Cong., 1st Sess., 12, 27 (1933), and it was later enacted into law as § 17 (a) of the 1933 Act. The Commission argues that the deliberate elimination of the language of intent reveals that Congress considered and rejected a scienter requirement under all three clauses of § 17 (a). This argument, however, rests entirely on inference, for the Conference Report sheds no light on what the Conference Committee meant to do about the question of scienter under § 17 (a). The legislative history thus gives rise to the equally plausible inference that the Conference Committee concluded that (1) in light of the plain meaning of § 17 (a)(1), the language of intent — “willfully” and “with intent to defraud” — was simply redundant, and (2) with regard to §17 (a)(2) and §17 (a)(3), a “willful[ness]” requirement was not to be included. It seems clear, therefore, that the legislative history, albeit ambiguous, may be read ill a manner entirely consistent with the plain meaning of § 17 (a). In the absence of a conflict between reasonably plain meaning and legislative history, the words of the statute must prevail. C There remains to be determined whether the provisions authorizing injunctive relief, § 20 (b) of the 1933 Act and § 21 (d) of the 1934 Act, modify the substantive provisions at issue in this case so far as scienter is concerned. The language and legislative history of § 20 (b) and § 21 (d) both indicate that Congress intended neither to add to nor to detract from the requisite showing of scienter under the substantive provisions at issue. Sections 20 (b) and 21 (d) provide that the Commission may seek injunctive relief whenever it appears that a person “is engaged or [is] about to engage in any acts or practices” constituting a violation of the 1933 or 1934 Acts or regulations promulgated thereunder and that, “upon a proper showing,” a district court shall grant the injunction. The elements of “a proper showing” thus include, at a minimum, proof that a person is engaged in or is about to engage in a substantive violation of either one of the Acts or of the regulations promulgated thereunder. Accordingly, when scienter is an element of the substantive violation sought to be enjoined, it must be proved before an injunction may issue. But with respect to those provisions such as § 17 (a) (2) and § 17 (a) (3), which may be violated even in the absence of scienter, nothing on the face of § 20 (b) or § 21 (d) purports to impose an independent requirement of scienter. And there is nothing in the legislative history of either provision to suggest a contrary legislative intent. This is not to say, however, that scienter has no bearing at all on whether a district court should enjoin a person violating or about to violate § 17 (a) (2) or § 17 (a) (3). In cases where the Commission is seeking to enjoin a person “about to engage in any acts or practices which... mil constitute” a violation of those provisions, the Commission must establish a sufficient evidentiary predicate to show that such future violation may occur. See SEC v. Commonwealth Chemical Securities, Inc., 574 F. 2d 90, 98-100 (CA2 1978) (Friendly, J.); 3 L. Loss, Securities Regulation, at 1976. An important factor in this regard is the degree of intentional wrongdoing evident in a defendant’s past conduct. See SEC v. Wills, 472 F. Supp. 1250, 1273-1275 (DC 1978). Moreover, as the Commission recognizes, a district court may consider scienter or lack of it as one of the aggravating or mitigating factors to be taken into account in exercising its equitable discretion in deciding whether or not to grant injunctive relief. And the proper exercise of equitable discretion is necessary to ensure a “nice adjustment and reconciliation between the public interest and private needs.” Hecht Co. v. Bowles, 321 U. S. 321, 329. Ill For the reasons stated in this opinion, we hold that the Commission is required to establish scienter as an element of a civil enforcement action to enjoin violations of § 17 (a)(1) of the 1933 Act, § 10 (b) of the 1934 Act, and Rule 10b-5 promulgated under that section of the 1934 Act. We further hold that the Commission need not establish scienter as an element of an action to enjoin violations of § 17 (a) (2) and § 17 (a) (3) of the 1933 Act. The Court of Appeals affirmed the issuance of the injunction in this Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Chief Justice Roberts delivered the opinion of the Court. In this case we consider whether police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury. We conclude that they may. I This case arises out of a melee that occurred in a Brigham City, Utah, home in the early morning hours of July 23, 2000. At about 3 a.m., four police officers responded to a call regarding a loud party at a residence. Upon arriving at the house, they heard shouting from inside, and proceeded down the driveway to investigate. There, they observed two juveniles drinking beer in the backyard. They entered the backyard, and saw — through a screen door and windows — an altercation taking place in the kitchen of the home. According to the testimony of one of the officers, four adults were attempting, with some difficulty, to restrain a juvenile. The juvenile eventually “broke free, swung a fist and struck one of the adults in the face.” 2005 UT 13, ¶ 2, 122 P. 3d 506, 508. The officer testified that he observed the victim of the blow spitting blood into a nearby sink. App. 40. The other adults continued to try to restrain the juvenile, pressing him up against a refrigerator with such force that the refrigerator began moving across the floor. At this point, an officer opened the screen door and announced the officers’ presence. Amid the tumult, nobody noticed. The officer entered the kitchen and again cried out, and as the occupants slowly became aware that the police were on the scene, the altercation ceased. The officers subsequently arrested respondents and charged them with contributing to the delinquency of a minor, disorderly conduct, and intoxication. In the trial court, respondents filed a motion to suppress all evidence obtained after the officers entered the home, arguing that the warrantless entry violated the Fourth Amendment. The court granted the motion, and the Utah Court of Appeals affirmed. Before the Supreme Court of Utah, Brigham City argued that although the officers lacked a warrant, their entry was nevertheless reasonable on either of two grounds. The court rejected both contentions and, over two dissenters, affirmed. First, the court held that the injury caused by the juvenile’s punch was insufficient to trigger the so-called “emergency aid doctrine” because it did not give rise to an “objectively reasonable belief that an unconscious, semiconscious, or missing person feared injured or dead [was] in the home.” 122 P. 3d, at 513 (internal quotation marks omitted). Furthermore, the court suggested that the doctrine was inapplicable because the officers had not sought to assist the injured adult, but instead had acted “exclusively in their law enforcement capacity.” Ibid. The court also held that the entry did not fall within the exigent circumstances exception to the warrant requirement. This exception applies, the court explained, where police have probable cause and where “a reasonable person [would] believe that the entry was necessary to prevent physical harm to the officers or other persons.” Id., at 514 (internal quotation marks omitted). Under this standard, the court stated, the potential harm need not be as serious as that required to invoke the emergency aid exception. Although it found the case “a close and difficult call,” the court nevertheless concluded that the officers’ entry was not justified by exigent circumstances. Id., at 515. We granted certiorari, 546 U. S. 1085 (2006), in light of differences among state courts and the Courts of Appeals concerning the appropriate Fourth Amendment standard governing warrantless entry by law enforcement in an emergency situation. Compare In re Sealed Case 96-3167, 153 F. 3d 759, 766 (CADC 1998) (“[T]he standard for exigent circumstances is an objective one”), and People v. Hebert, 46 P. 3d 473, 480 (Colo. 2002) (en banc) (considering the circumstances as they “would have been objectively examined by a prudent and trained police officer”), with United States v. Cervantes, 219 F. 3d 882, 890 (CA9 2000) (“[U]nder the emergency doctrine, ‘[a] search must not be primarily motivated by intent to arrest and seize evidence’” (quoting People v. Mitchell, 39 N. Y. 2d 173, 177, 347 N. E. 2d 607, 609 (1976)), and State v. Mountford, 171 Vt. 487, 492, 769 A. 2d 639, 645 (2000) (Mitchell test “requires] courts to find that the primary subjective motivation behind such searches was to provide emergency aid”). II It is a “‘basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.’ ” Groh v. Ramirez, 540 U. S. 551, 559 (2004) (quoting Payton v. New York, 445 U. S. 573, 586 (1980); some internal quotation marks omitted). Nevertheless, because the ultimate touchstone of the Fourth Amendment is “reasonableness,” the warrant requirement is subject to certain exceptions. Flippo v. West Virginia, 528 U. S. 11, 13 (1999) (per curiam); Katz v. United States, 389 U. S. 347, 357 (1967). We have held, for example, that law enforcement officers may make a warrantless entry onto private property to fight a fire and investigate its cause, Michigan v. Tyler, 436 U. S. 499, 509 (1978), to prevent the imminent destruction of evidence, Ker v. California, 374 U. S. 23, 40 (1963) (plurality opinion), or to engage in “ ‘hot pursuit’ ” of a fleeing suspect, United States v. Santana, 427 U. S. 38, 42, 43 (1976). “[Wjarrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U. S. 385, 393-394 (1978). One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. “ ‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’” Id., at 392 (quoting Wayne v. United States, 318 F. 2d 205, 212 (CADC 1963) (Burger, J.)); see also Tyler, supra, at 509. Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. Mincey, supra, at 392; see also Georgia v. Randolph, ante, at 118 (“[I]t would be silly to suggest that the police would commit a tort by entering ... to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur”). Respondents do not take issue with these principles, but instead advance two reasons why the officers’ entry here was unreasonable. First, they argue that the officers were more interested in making arrests than quelling violence. They urge us to consider, in assessing the reasonableness of the entry, whether the officers were “indeed motivated primarily by a desire to save lives and property.” Brief for Respondents 3; see also Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 6 (entry to render emergency assistance justifies a search “only when the searching officer is acting outside his traditional law-enforcement capacity”). The Utah Supreme Court also considered the officers’ subjective motivations relevant. See 122 P. 3d, at 513 (search under the “emergency aid doctrine” may not be “primarily motivated by intent to arrest and seize evidence” (internal quotation marks omitted)). Our cases have repeatedly rejected this approach. An action is “reasonable” under the Fourth Amendment, regardless of the individual officer’s state of mind, “as long as the circumstances, viewed objectively, justify [the] action.” Scott v. United States, 436 U. S. 128, 138 (1978) (emphasis added). The officer’s subjective motivation is irrelevant. See Bond v. United States, 529 U. S. 334, 338, n. 2 (2000) (“The parties properly agree that the subjective intent of the law enforcement officer is irrelevant in determining whether that officer’s actions violate the Fourth Amendment...; the issue is not his state of mind, but the objective effect of his actions”); Whren v. United States, 517 U. S. 806, 813 (1996) (“[W]e have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers”); Graham v. Connor, 490 U. S. 386, 397 (1989) (“[0]ur prior cases make clear” that “the subjective motivations of the individual officers . . . ha[ve] no bearing on whether a particular seizure is ‘unreasonable’ under the Fourth Amendment”). It therefore does not matter here — even if their subjective motives could be so neatly unraveled — whether the officers entered the kitchen to arrest respondents and gather evidence against them or to assist the injured and prevent further violence. As respondents note, we have held in the context of programmatic searches conducted without individualized suspicion — such as checkpoints to combat drunk driving or drug trafficking — that “an inquiry into programmatic purpose” is sometimes appropriate. Indianapolis v. Edmond, 531 U. S. 32, 46 (2000) (emphasis added); see also Florida v. Wells, 495 U. S. 1, 4 (1990) (an inventory search must be regulated by “standardized criteria” or “established routine” so as not to “be a ruse for a general rummaging in order to discover incriminating evidence”). But this inquiry is directed at ensuring that the purpose behind the program is not “ultimately indistinguishable from the general interest in crime control.” Edmond, 531 U. S., at 44. It has nothing to do with discerning what is in the mind of the individual officer conducting the search. Id., at 48. Respondents further contend that their conduct was not serious enough to justify the officers’ intrusion into the home. They rely on Welsh v. Wisconsin, 466 U. S. 740, 753 (1984), in which we held that “an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.” This contention, too, is misplaced. Welsh involved a warrantless entry by officers to arrest a suspect for driving while intoxicated. There, the “only potential emergency” confronting the officers was the' need to preserve evidence (i. e., the suspect’s blood-alcohol level) — an exigency that we held insufficient under the circumstances to justify entry into the suspect’s home. Ibid. Here, the officers were confronted with ongoing violence occurring within the home. Welsh did not address such a situation. We think the officers’ entry here was plainly reasonable under the circumstances. The officers were responding, at 3 o’clock in the morning, to complaints about a loud party. As they approached the house, they could hear from within “an altercation occurring, some kind of a fight.” App. 29. “It was loud and it was tumultuous.” Id., at 33. The officers heard “thumping and crashing” and people yelling “stop, stop” and “get off me.” Id., at 28, 29. As the trial court found, “it was obvious that . . . knocking on the front door” would have been futile. Id., at 92. The noise seemed to be coming from the back of the house; after looking in the front window and seeing nothing, the officers proceeded around back to investigate further. They found two juveniles drinking beer in the backyard. From there, they could see that a fracas was taking place inside the kitchen. A juvenile, fists clenched, was being held back by several adults. As the officers watch, he breaks free and strikes one of the adults in the face, sending the adult to the sink spitting blood. In these circumstances, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning. Nothing in the Fourth Amendment required them to wait until another blow rendered someone “unconscious” or “semi-conscious” or worse before entering. The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided. The manner of the officers’ entry was also reasonable. After witnessing the punch, one of the officers opened the screen door and “yelled in police.” Id., at 40. When nobody heard him, he stepped into the kitchen and announced himself again. Only then did the tumult subside. The officer’s announcement of his presence was at least equivalent to a knock on the screen door. Indeed, it was probably the only option that had even a chance of rising above the din. Under these circumstances, there was no violation of the Fourth Amendment’s knock-and-announce rule. Furthermore, once the announcement was made, the officers were free to enter; it would serve no purpose to require them to stand dumbly at the door awaiting a response while those within brawled on, oblivious to their presence. Accordingly, we reverse the judgment of the Supreme Court of Utah, and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Brennan delivered the opinion of the Court, except as to Part III-C. We must decide in this case whether various incriminating utterances of a drunken-driving suspect, made while performing a series of sobriety tests, constitute testimonial responses to custodial interrogation for purposes of the Self-Incrimination Clause of the Fifth Amendment. I During the early morning hours of November 30, 1986, a patrol officer spotted respondent Inocencio Muniz and a passenger parked in a car on the shoulder of a highway. When the officer inquired whether Muniz needed assistance, Muniz replied that he had stopped the car so he could urinate. The officer smelled alcohol on Muniz’s breath and observed that Muniz’s eyes were glazed and bloodshot and his face was flushed. The officer then directed Muniz to remain parked until his condition improved, and Muniz gave assurances that he would do so. But as the officer returned to his vehicle, Muniz drove off. After the officer pursued Muniz down the highway and pulled him over, the officer asked Muniz to perform three standard field sobriety tests: a “horizontal gaze nystagmus” test, a “walk and turn” test, and a “one leg stand” test. Muniz performed these tests poorly, and he informed the officer that he had failed the tests because he had been drinking. The patrol officer arrested Muniz and transported him to the West Shore facility of the Cumberland County Central Booking Center. Following its routine practice for receiving persons suspected of driving while intoxicated, the booking center videotaped the ensuing proceedings. Muniz was informed that his actions and voice were being recorded, but he was not at this time (nor had he been previously) advised of his rights under Miranda v. Arizona, 384 U. S. 436 (1966). Officer Hosterman first asked Muniz his name, address, height, weight, eye color, date of birth, and current age. He responded to each of these questions, stumbling over his address and age. The officer then asked Muniz, “Do you know what the date was of your sixth birthday?” After Muniz offered an inaudible reply, the officer repeated, “When you turned six years old, do you remember what the date was?” Muniz responded, “No, I don’t.” Officer Hosterman next requested Muniz to perform each of the three sobriety tests that Muniz had been asked to perform earlier during the initial roadside stop. The videotape reveals that his eyes jerked noticeably during the gaze test, that he did not walk a very straight line, and that he could not balance himself on one leg for more than several seconds. During the latter two tests, he did not complete the requested verbal counts from 1 to 9 and from 1 to 30. Moreover, while performing these tests, Muniz “attempted to explain his difficulties in performing the various tasks, and often requested further clarification of the tasks he was to perform.” 377 Pa. Super. 382, 390, 547 A. 2d 419, 423 (1988). Finally, Officer Deyo asked Muniz to submit to a breathalyzer test designed to measure the alcohol content of his expelled breath. Officer Deyo read to Muniz the Commonwealth’s Implied Consent Law, 75 Pa. Cons. Stat. § 1547 (1987), and explained that under the law his refusal to take the test would result in automatic suspension of his driver’s license for one year. Muniz asked a number of questions about the law, commenting in the process about his state of inebriation. Muniz ultimately refused to take the breath test. At this point, Muniz was for the first time advised of his Miranda rights. Muniz then signed a statement waiving his rights and admitted in response to further questioning that he had been driving while intoxicated. Both the video and audio portions of the videotape were admitted into evidence at Muniz’s bench trial, along with the arresting officer’s testimony that Muniz failed the roadside sobriety tests and made incriminating remarks at that time. Muniz was convicted of driving under the influence of alcohol in violation of 75 Pa. Cons. Stat. § 3731(a)(1) (1987). Muniz filed a motion for a new trial, contending that the court should have excluded the testimony relating to the field sobriety tests and the videotape taken at the booking center “because they were incriminating and completed prior to [Muniz’s] receiving his Miranda warnings.” App. to Pet. for Cert. C-5—C-6. The trial court denied the motion, holding that “‘requesting a driver, suspected of driving under the influence of alcohol, to perform physical tests or take a breath analysis does not violate [his] privilege against self-incrimination because [the] evidence procured is of a physical nature rather than testimonial, and therefore no Miranda warnings are required.’” Id., at C-6, quoting Commonwealth v. Benson, 280 Pa. Super. 20, 29, 421 A. 2d 383, 387 (1980). On appeal, the Superior Court of Pennsylvania reversed. The appellate court agreed that when Muniz was asked “to submit to a field sobriety test, and later perform these tests before the videotape camera, no Miranda warnings were required” because such sobriety tests elicit physical, rather than testimonial, evidence within the meaning of the Fifth Amendment. 377 Pa. Super., at 387, 547 A. 2d, at 422. The court concluded, however, that “when the physical nature of the tests begins to yield testimonial and communicative statements... the protections afforded by Miranda are invoked.” Ibid. The court explained that Muniz’s answer to the question regarding his sixth birthday and the statements and inquiries he made while performing the physical dexterity tests and discussing the breathalyzer test “are precisely the sort of testimonial evidence that we expressly protected in [previous cases],” id., at 390, 547 A. 2d, at 423, because they “‘reveal[ed] his thought processes.’” Id., at 389, 547 A. 2d, at 423. The court further explained: “[N]one of Muniz’s utterances were spontaneous, voluntary verbalizations. Rather, they were clearly compelled by the questions and instructions presented to him during his detention at the Booking Center. Since the... responses and communications were elicited before Muniz received his Miranda warnings, they should have been excluded as evidence.” Id., at 390, 547 A. 2d, at 423. Concluding that the audio portion of the videotape should have been suppressed in its entirety, the court reversed Muniz’s conviction and remanded the case for a new trial. After the Pennsylvania Supreme Court denied the Commonwealth’s application for review, 522 Pa. 575, 559 A. 2d 36 (1989), we granted certiorari. 493 U. S. 916 (1989). II The Self-Incrimination Clause of the Fifth Amendment provides that no “person... shall be compelled in any criminal case to be a witness against himself.” Although the text does not delineate the ways in which a person might be made a “witness against himself,” cf. Schmerber v. California, 384 U. S. 757, 761-762, n. 6 (1966), we have long held that the privilege does not protect a suspect from being compelled by the State to produce “real or physical evidence.” Id., at 764. Rather, the privilege “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” Id., at 761. “[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a ‘witness’ against himself.” Doe v. United States, 487 U. S. 201, 210 (1988). In Miranda v. Arizona, 384 U. S. 436 (1966), we reaffirmed our previous understanding that the privilege against self-incrimination protects individuals not only from legal compulsion to testify in a criminal courtroom but also from “informal compulsion exerted by law-enforcement officers during incustody questioning.” Id., at 461. Of course, voluntary statements offered to police officers “remain a proper element in law enforcement.” Id., at 478. But “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Id., at 467. Accordingly, we held that protection of the privilege against self-incrimination during pretrial questioning requires application of special “procedural safeguards.” Id., at 444. “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Ibid. Unless a suspect “voluntarily, knowingly and intelligently” waives these rights, ibid., any incriminating responses to questioning may not be introduced into evidence in the prosecution’s case in chief in a subsequent criminal proceeding. This case implicates both the “testimonial” and “compulsion” components of the privilege against self-incrimination in the context of pretrial questioning. Because Muniz was not advised of his Miranda rights until after the videotaped proceedings at the booking center were completed, any verbal statements that were both testimonial in nature and elicited during custodial interrogation should have been suppressed. We focus first on Muniz’s responses to the initial informational questions, then on his questions and utterances while performing the physical dexterity and balancing tests, and finally on his questions and utterances surrounding the breathalyzer test. III In the initial phase of the recorded proceedings, Officer Hosterman asked Muniz his name, address, height, weight, eye color, date of birth, current age, and the date of his sixth birthday. Both the delivery and content of Muniz’s answers were incriminating. As the state court found, “Muniz’s videotaped responses... certainly led the finder of fact to infer that his confusion and failure to speak clearly indicated a state of drunkenness that prohibited him from safely operating his vehicle.” 377 Pa. Super., at 390, 547 A. 2d, at 423. The Commonwealth argues, however, that admission of Muniz’s answers to these questions does not contravene Fifth Amendment principles because Muniz’s statement regarding his sixth birthday was not “testimonial” and his answers to the prior questions were not elicited by custodial interrogation. We consider these arguments in turn. A We agree with the Commonwealth’s contention that Muniz’s answers are not rendered inadmissible by Miranda merely because the slurred nature of his speech was incriminating. The physical inability to articulate words in a clear manner due to “the lack of muscular coordination of his tongue and mouth,” Brief for Petitioner 16, is not itself a testimonial component of Muniz’s responses to Officer Hosterman’s introductory questions. In Schmerber v. California, supra, we drew a distinction between “testimonial” and “real or physical evidence” for purposes of the privilege against self-incrimination. We noted that in Holt v. United States, 218 U. S. 245, 252-253 (1910), Justice Holmes had written for the Court that “‘[t]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.’” 384 U. S., at 763. We also acknowledged that “both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Id., at 764. Embracing this view of the privilege’s contours, we held that “the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” Ibid. Using this “helpful framework for analysis,” ibid., we held that a person suspected of driving while intoxicated could be forced to provide a blood sample, because that sample was “real or physical evidence” outside the scope of the privilege and the sample was obtained in a manner by which “[p]etitioner’s testimonial capacities were in no way implicated.” Id., at 765. We have since applied the distinction between “real or physical” and “testimonial” evidence in other contexts where the evidence could be produced only through some volitional act on the part of the suspect. In United States v. Wade, 388 U. S. 218 (1967), we held that a suspect could be compelled to participate in a lineup and to repeat a phrase provided by the police so that witnesses could view him and listen to his voice. We explained that requiring his presence and speech at a lineup reflected “compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.” Id., at 222; see id., at 222-223 (suspect was “required to use his voice as an identifying physical characteristic”). In Gilbert v. California, 388 U. S. 263 (1967), we held that a suspect could be compelled to provide a handwriting exemplar, explaining that such an exemplar, “in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the privilege’s] protection.” Id., at 266-267. And in United States v. Dionisio, 410 U. S. 1 (1973), we held that suspects could be compelled to read a transcript in order to provide a voice exemplar, explaining that the “voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said.” Id., at 7. Under Schmerber and its progeny, we agree with the Commonwealth that any slurring of speech and other evidence of lack of muscular coordination revealed by Muniz’s responses to Officer Hosterman’s direct questions constitute nontestimonial components of those responses. Requiring a suspect to reveal the physical manner in which he articulates words, like requiring him to reveal the physical properties of the sound produced by his voice, see Dionisio, supra, does not, without more, compel him to provide a “testimonial” response for purposes of the privilege. B This does not end our inquiry, for Muniz’s answer to the sixth birthday question was incriminating, not just because of his delivery, but also because of his answer’s content; the trier of fact could infer from Muniz’s answer (that he did not know the proper date) that his mental state was confused. The Commonwealth and the United States as amicus curiae argue that this incriminating inference does not trigger the protections of the Fifth Amendment privilege because the inference concerns “the physiological functioning of [Muniz’s] brain,” Brief for Petitioner 21, which is asserted to be every bit as “real or physical” as the physiological makeup of his blood and the timbre of his voice. But this characterization addresses the wrong question; that the “fact” to be inferred might be said to concern the physical status of Muniz’s brain merely describes the way in which the inference is incriminating. The correct question for present purposes is whether the incriminating inference of mental confusion is drawn from a testimonial act or from physical evidence. In Schmerber, for example, we held that the police could compel a suspect to provide a blood sample in order to determine the physical makeup of his blood and thereby draw an inference about whether he was intoxicated. This compulsion was outside of the Fifth Amendment’s protection, not simply because the evidence concerned the suspect’s physical body, but rather because the evidence was obtained in a manner that did not entail any testimonial act on the part of the suspect: “Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis.” 384 U. S., at 765. In contrast, had the police instead asked the suspect directly whether his blood contained a high concentration of alcohol, his affirmative response would have been testimonial even though it would have been used to draw the same inference concerning his physiology. See ibid. (“[T]he blood test evidence... was neither [the suspect’s] testimony nor evidence relating to some communicative act”). In this case, the question is not whether a suspect’s “impaired mental faculties” can fairly be characterized as an aspect of his physiology, but rather whether Muniz’s response to the sixth birthday question that gave rise to the inference of such an impairment was testimonial in nature. We recently explained in Doe v. United States, 487 U. S. 201 (1988), that “in order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Id., at 210. We reached this conclusion after addressing our reasoning in Schmerber, supra, and its progeny: “The Court accordingly held that the privilege was not implicated in [the line of cases beginning with Schmerber], because the suspect was not required ‘to disclose any knowledge he might have,’ or ‘to speak his guilt.’ Wade, 388 U. S., at 222-223. See Dionisio, 410 U. S., at 7; Gilbert, 388 U. S., at 266-267. It is the ‘extortion of information from the accused,’ Couch v. United States, 409 U. S., at 328, the attempt to force him ‘to disclose the contents of his own mind,’ Curcio v. United States, 354 U. S. 118, 128 (1957), that implicates the Self-Incrimination Clause.... ‘Unless some attempt is made to secure a communication—written, oral or otherwise—upon which reliance is to be placed as involving [the accused’s] consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one.’ 8 Wigmore § 2265, p. 386.” 487 U. S., at 210-211. After canvassing the purposes of the privilege recognized in prior cases, we concluded that “[t]hese policies are served when the privilege is asserted to spare the accused from having to reveal, directly or indirectly, his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government.” Id., at 213. This definition of testimonial evidence reflects an awareness of the historical abuses against which the privilege against self-incrimination was aimed. “Historically, the privilege was intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him. Such was the process of the ecclesiastical courts and the Star Chamber—the inquisitorial method of putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source. The major thrust of the policies undergirding the privilege is to prevent such compulsion.” Id., at 212 (citations omitted); see also Andresen v. Maryland, 427 U. S. 463, 470-471 (1976). At its core, the privilege reflects our fierce “‘unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt,’” Doe, 487 U. S., at 212 (citation omitted), that defined the operation of the Star Chamber, wherein suspects were forced to choose between revealing incriminating private thoughts and forsaking their oath by committing perjury. See United States v. Nobles, 422 U. S. 225, 233 (1975) (“The Fifth Amendment privilege against compulsory self-incrimination... protects ‘a private inner sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation’ ”) (quoting Couch v. United States, 409 U. S. 322, 327 (1973)). We need not explore the outer boundaries of what is “testimonial” today, for our decision flows from the concept’s core meaning. Because the privilege was designed primarily to prevent “a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality,” Ullmann v. United States, 350 U. S. 422, 428 (1956), it is evident that a suspect is “compelled... to be a witness against himself” at least whenever he must face the modern-day analog of the historic trilemma—either during a criminal trial where a sworn witness faces the identical three choices, or during custodial interrogation where, as we explained in Miranda, the choices are analogous and hence raise similar concerns. Whatever else it may include, therefore, the definition of “testimonial” evidence articulated in Doe must encompass all responses to questions that, if asked of a sworn suspect during a criminal trial, could place the suspect in the “cruel trilemma.” This conclusion is consistent with our recognition in Doe that “[t]he vast majority of verbal statements thus will be testimonial” because “[t]here are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts.” 487 U. S., at 213. Whenever a suspect is asked for a response requiring him to communicate an express or implied assertion of fact or belief, the suspect confronts the “trilemma” of truth, falsity, or silence, and hence the response (whether based on truth or falsity) contains a testimonial component. This approach accords with each of our post-Schmerber cases finding that a particular oral or written response to express or implied questioning was nontestimonial; the questions presented in these cases did not confront the suspects with this trilemma. As we noted in Doe, supra, at 210-211, the cases upholding compelled writing and voice exemplars did not involve situations in which suspects were asked to communicate any personal beliefs or knowledge of facts, and therefore the suspects were not forced to choose between truthfully or falsely revealing their thoughts. We carefully noted in Gilbert v. California, 388 U. S. 263 (1967), for example, that a “mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the privilege’s] protection.” Id., at 266-267 (emphasis added). Had the suspect been asked to provide a writing sample of his own composition, the content of the writing would have reflected his assertion of facts or beliefs and hence would have been testimonial; but in Gilbert “[n]o claim [was] made that the content of the exemplars was testimonial or communicative matter.” Id., at 267. And in Doe, the suspect was asked merely to sign a consent form waiving a privacy interest in foreign bank records. Because the consent form spoke in the hypothetical and did not identify any particular banks, accounts, or private records, the form neither “communicate[d] any factual assertions, implicit or explicit, [n]or convey[ed] any information to the Government.” 487 U. S., at 215. We concluded, therefore, that compelled execution of the consent directive did not “forc[e] [the suspect] to express the contents of his mind,” id., at 210, n. 9, but rather forced the suspect only to make a “nonfactual statement.” Id., at 213, n. 11. In contrast, the sixth birthday question in this case required a testimonial response. When Officer Hosterman asked Muniz if he knew the date of his sixth birthday and Muniz, for whatever reason, could not remember or calculate that date, he was confronted with the trilemma. By hypothesis, the inherently coercive environment created by the custodial interrogation precluded the option of remaining silent, see n. 10, supra. Muniz was left with the choice of incriminating himself by admitting that he did not then know the date of his sixth birthday, or answering untruthfully by reporting a date that he did not then believe to be accurate (an incorrect guess would be incriminating as well as untruthful). The content of his truthful answer supported an inference that his mental faculties were impaired, because his assertion (he did not know the date of his sixth birthday) was different from the assertion (he knew the date was (correct date)) that the trier of fact might reasonably have expected a lucid person to provide. Hence, the incriminating inference of impaired mental faculties stemmed, not just from the fact that Muniz slurred his response, but also from a testimonial aspect of that response. The state court held that the sixth birthday question constituted an unwarned interrogation for purposes of the privilege against self-incrimination, 377 Pa. Super., at 390, 547 A. 2d, at 423, and that Muniz’s answer was incriminating. Ibid. The Commonwealth does not question either conclusion. Therefore, because we conclude that Muniz’s response to the sixth birthday question was testimonial, the response should have been suppressed. C The Commonwealth argues that the seven questions asked by Officer Hosterman just prior to the sixth birthday question-regarding Muniz’s name, address, height, weight, eye color, date of birth, and current age—did not constitute custodial interrogation as we have defined the term in Miranda and subsequent cases. In Miranda, the Court referred to “interrogation” as actual “questioning initiated by law enforcement officers.” 384 U. S., at 444. We have since clarified that definition, finding that the “goals of the Miranda safeguards could be effectuated if those safeguards extended not only to express questioning, but also to ‘its functional equivalent.’” Arizona v. Mauro, 481 U. S. 520, 526 (1987). In Rhode Island v. Innis, 446 U. S. 291 (1980), the Court defined the phrase “functional equivalent” of express questioning to include “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” Id., at 301 (footnotes omitted); see also Illinois v. Perkins, ante, at 296. However, “[a]ny knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining” what the police reasonably should have known. Innis, supra, at 302, n. 8. Thus, custodial interrogation for purposes of Miranda includes both express questioning and words or actions that, given the officer’s knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to “have... the force of a question on the accused,” Harryman v. Estelle, 616 F. 2d 870, 874 (CA5 1980), and therefore be reasonably likely to elicit an incriminating response. We disagree with the Commonwealth’s contention that Officer Hosterman’s first seven questions regarding Muniz’s name, address, height, weight, eye color, date of birth, and current age do not qualify as custodial interrogation as we defined the term in Innis, supra, merely because the questions were not intended to elicit information for investigatory purposes. As explained above, the Innis test focuses primarily upon “the perspective of the suspect.” Perkins, ante, at 296. We agree with amicus United States, however, that Muniz’s answers to these first seven questions are nonetheless admissible because the questions fall within a “routine booking question” exception which exempts from Miranda’s coverage questions to secure the “‘biographical data necessary to complete booking or pretrial services.’” Brief for United States as Amicus Curiae 12, quoting United States v. Horton, 873 F. 2d 180, 181, n. 2 (CA8 1989). The state court found that the first seven questions were “requested for record-keeping purposes only,” App. B16, and therefore the questions appear reasonably related to the police’s administrative concerns. In this context, therefore, the first seven questions asked at the booking center fall outside the protections of Miranda and the answers thereto need not be suppressed. IV During the second phase of the videotaped proceedings, Officer Hosterman asked Muniz to perform the same three sobriety tests that he had earlier performed at roadside prior to his arrest: the “horizontal gaze nystagmus” test, the “walk and turn” test, and the “one leg stand” test. While Muniz was attempting to comprehend Officer Hosterman’s instructions and then perform the requested sobriety tests, Muniz made several audible and incriminating statements. Muniz argued to the state court that both the videotaped performance of the physical tests themselves and the audiorecorded verbal statements were introduced in violation of Miranda. The court refused to suppress the videotaped evidence of Muniz’s paltry performance on the physical sobriety tests, reasoning that “‘[Requiring a driver to perform physical [sobriety] tests... does not violate the privilege against self-incrimination because the evidence procured is of a physical nature rather than testimonial.’” 377 Pa. Super., at 387, 547 A. 2d, at 422 (quoting Commonwealth v. Benson, 280 Pa. Super., at 29, 421 A. 2d, at 387). With respect to Muniz’s verbal statements, however, the court concluded that “none of Muniz’s utterances were spontaneous, voluntary verbalizations,” 377 Pa. Super., at 390, 547 A. 2d, at 423, and because they were “elicited before Muniz received his Miranda warnings, they should have been excluded as evidence.” Ibid. We disagree. Officer Hosterman’s dialogue with Muniz concerning the physical sobriety tests consisted primarily of carefully scripted instructions as to how the tests were to be performed. These instructions were not likely to be perceived as calling for any verbal response and therefore were not “words or actions” constituting custodial interrogation, with two narrow exceptions not relevant here. The dialogue also contained limited and carefully worded inquiries as to whether Muniz understood those instructions, but these focused inquiries were necessarily “attendant to” the police procedure held by the court to be legitimate. Hence, Muniz’s incriminating utterances during this phase of the videotaped proceedings were “voluntary” in the sense that they were not elicited in response to custodial interrogation. See South Dakota v. Neville, 459 U. S. 553, 564, n. 15 (1983) (drawing analogy to “police request to submit to fingerprinting or photography” and holding that police inquiry whether suspect would submit to blood-alcohol test was not “interrogation within the meaning of Miranda"). Similarly, we conclude that Miranda does not require suppression of the statements Muniz made when asked to submit to a breathalyzer examination. Officer Deyo read Muniz a prepared script explaining how the test worked, the nature of Pennsylvania’s Implied Consent Law, and the legal consequences that would ensue should he refuse. Officer Deyo then asked Muniz whether he understood the nature of the test and the law and whether he would like to submit to the test. Muniz asked Officer Deyo several questions concerning the legal consequences of refusal, which Deyo answered directly, and Muniz then commented upon his state of inebriation. 377 Pa. Super., at 387, 547 A. 2d, at 422. After offering to take the test only after waiting a couple of hours or drinking some water, Muniz ultimately refused. We believe that Muniz’s statements were not prompted by an interrogation within the meaning of Miranda, and therefore the absence of Miranda warnings does not require suppression of these statements at trial. As did Officer Hosterman when administering the three physical sobriety tests, see supra, at 603-604, Officer Deyo carefully limited her role to providing Muniz with relevant information about the breathalyzer test and the Implied Consent Law. She questioned Muniz only as to whether he understood her instructions and wished to submit to the test. These limited and focused inquiries were necessarily “attendant to” the legitimate police procedure, see Neville, supra, at 564, n. 15, and were not likely to be perceived as calling for any incriminating response. V We agree with the state court’s conclusion that Miranda requires suppression of Muniz’s response to the question regarding the date of his sixth birthday, but we do not agree that the entire audio portion of the videotape must be suppressed. Accordingly, the court’s judgment reversing Muniz’s conviction is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. The “horizontal gaze nystagmus” test measures the extent to which a person’s eyes jerk as they follow an object moving from one side of the person’s field of vision to the other. The test is premised on the understanding that, whereas everyone’s eyes exhibit some jerking while turning to the side, when the subject is intoxicated “the onset of the jerking occurs after fewer degrees of turning, and the jerking at more extreme angles becomes more distinct.” 1 R. Erwin et al., Defense of Drunk Driving Cases § 8A.99, pp. 8A-43, 8A-45 (1989). The “walk and turn” test requires the subject to walk heel to toe along a straight line for nine paces, pivot, and then walk back heel to toe along the line for another nine paces. The subject is required to count each pace aloud from one to nine. The “one leg stand” test requires the subject to stand on one leg with the other leg extended in the air for 30 seconds, while counting aloud from 1 to 30. There was a 14-minute delay between the completion of the physical sobriety tests and the beginning of the breathalyzer test. During this period, Muniz briefly engaged in conversation with Officer Hosterman. This 14-minute segment of the videotape was not shown at trial. App. 29. The court did not suppress Muniz’s verbal admissions to the arresting officer during the roadside tests, ruling that Muniz was not taken into custody for purposes of Miranda until he was arrested after the roadside tests were completed. See Pennsylvania v. Bruder, 488 U. S. 9 (1988). The Superior Court’s opinion refers to Art. 1, § 9, of the Pennsylvania Constitution but explains that this provision “‘offers a protection against self-incrimination identical to that provided by the Fifth Amendment.’” 377 Pa. Super., at 386, 547 A. 2d, at 421 (quoting Commonwealth v. Conway, 368 Pa. Super. 488, 498, 534 A. 2d 541, 546 (1987)). The decision therefore does not rest on an independent and adequate state ground. See Michigan v. Long, 463 U. S. 1032 (1983). In Malloy v. Hogan, 378 U. S. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. (1) Nos. 697 and 702 are before the Court on petitions for certiorari to review, first, an order of the District Court for the District of Columbia requiring that Charles Sawyer endorse certain stock certificates as “United States Maritime Commission, by Charles Sawyer, Secretary of Commerce,” and, second, a Restraining Order issued by the Court of Appeals for the District of Columbia Circuit enjoining named petitioners from: “proposing, seeking or advocating any step in any proceeding, whether in said suit entitled United States v. R. Stanley Dollar, et al., or in any other proceeding, inconsistent with strict compliance with and obedience to the orders heretofore entered by this Court in this cause. “AND IT IS FURTHER ORDERED that said persons are and each of them is enjoined and restrained until further order of this Court from complying with, taking advantage of, or utilizing, or seeking to comply with, utilize or take advantage of said temporary injunction issued by the United States District Court for the Northern District of California, Southern Division, in said cause entitled United States v. R. Stanley Dollar, et al., or any order of similar tenor which may hereafter be entered by said court or any other court.” The two orders are before the Court for the first time in Nos. 697 and 702. Certiorari is granted in these cases. (2) Subsequent to the issuance of the above Restraining Order, the Court of Appeals for the District of Columbia Circuit found named petitioners to be in civil contempt of its prior decrees by reason of, inter alia, their activities in connection with obtaining the temporary injunction on behalf of the United States in its suit in the Northern District of California, referred to in the Restraining Order. The order of contempt has been stayed pending disposition of Nos. 697 and 702 as well as the forthcoming petitions for certiorari directed to the contempt order. Motion of respondents to vacate the stay is denied. (3) No action is taken at this time on petitioners’ motion for leave to file a motion for reconsideration of our denial of certiorari in No. 353. The motion is continued on the docket so that there may be no question as to this Court’s control over No. 353 for whatever action may be deemed appropriate. (4) It has been suggested that this Court delay the normal ending of the October Term, 1950, and hear argument within a matter of weeks. No motion for advancement has been filed. We agree that expeditious disposition of the important issues in this lengthy proceeding is highly desirable. But our desire for expedition must be weighed against the danger to orderly presentation of important issues inherent in hasty briefing and argument. And this is particularly so when it is suggested that we hear argument not only in Nos. 697 and 702 now before us, but also in the cases to come to us from the order of civil contempt in which petitions for certiorari are to be filed. There is a further consideration militating against premature disposition of the issues presented. There is now pending in the United States District Court for the Northern District of California an action brought by the United States for adjudication of its claim of title in the same shares of stock as those involved in the instant cases. We have heretofore held that judgments entered in the instant cases would not be res judicata against the United States. Land v. Dollar, 330 U. S. 731, 736, 737, 739 (1947). Appeals have been taken from the temporary injunction issued in that suit on behalf of the United States and with which much of the present phase of this litigation is concerned. We are advised that on May 31, 1951, the Court of Appeals for the Ninth Circuit heard argument on a motion to stay the temporary injunction pending appeal from the order granting the temporary injunction and has taken that motion under advisement. On June 1, 1951, the District Court for the Northern District of California began its hearing on defendants’ (respondents in this Court) motion to dismiss the complaint and for summary judgment. For the foregoing reasons, we do not accept the suggestion that hearing argument in a matter of weeks is compatible with the orderly administration of justice. Mr. Justice Black and Mr. Justice Clark took no part in the consideration or decision of these applications. Mr. Justice Frankfurter does not join in this opinion. Separate memorandum of Mr. Justice Frankfurter. It is not practicable, as a rule, for reasóns indicated in my memorandum in Maryland v. Baltimore Radio Show, 338 U. S. 912, to set forth the considerations that move the Court in granting or denying a petition for certiorari. And since an unexplained announcement of an individual vote on such action is too often apt to be equivocal, it has been my unbroken practice not to note my vote on the disposition of such petitions. However, the petition now before the Court is the latest stage in a long process. In different phases it has been here three times. Because our action, may be misleading, unless viewed in its setting, a plain narrative of the course of this litigation in its bearing on this petition is, I believe, desirable. 1. What is ultimately in issue is the ownership of the Dollar Steamship Lines. As a result of transactions between the Lines and the United States Maritime Commission, which we need not here relate, 92% of the stock of the corporation was in 1945 listed in the name of the Maritime Commission and voted by the members of that body. On November 6 of that year, the former Dollar stockholders (hereafter called the Dollars) brought suit against the members of the Commission, alleging that the stock was unlawfully withheld and demanding its return. The action was brought in the District Court for the District of Columbia, and for four and one-half years wound its way through the Court of Appeals to this Court, back to the District Court, and once again to the Court of Appeals. 81 U. S. App. D. C. 28, 154 F. 2d 307; 330 U. S. 731; 82 F. Supp. 919; 87 U. S. App. D. C. 214, 184 F. 2d 245. At every stage, the Commissioners were represented by attorneys from the Department of Justice, who asserted as ground for dismissal that the action was a suit against the United States to which consent had not been given. Our decision, 330 U. S. 731, held that, if the allegations of the complaint were true, the action was not against the United States, but rather against the Commissioners in their individual capacities. The District Court decided on the merits that the facts were not as they had been alleged. 82 F. Supp. 919. But on July 17, 1950, the Court of Appeals reversed. It held that the stock of the corporation was unlawfully withheld by the members of the Commission, and that, since title to it had never vested in the United States, the suit was not against the sovereign. 87 U. S. App. D. C. 214, 184 F. 2d 245. We refused to review this decision. 340 U. S. 884. Later, we refused to reconsider our refusal. 340 U. S. 948. 2. The upshot of the litigation at this point was that the Dollars had obtained a final judgment that the members of the United States Maritime Commission were unlawfully withholding the stock of the corporation, and that, as against the Commissioners, the Dollars were entitled to it. To carry out the judgment, the District Court entered an order on mandate on December 11, 1950. That order stated in part that “title to the shares in question is in the plaintiffs [Dollars], since they were never legally divested of the same, and the asserted title of all others arising out of the same transaction to the contrary [is] null and void . . . 97 F. Supp. 59. 3. The members of the Maritime Commission took an appeal from this order. They urged that it was too broad, in that it purported to bind, not only the individual members of the Commission, but also the United States. The Court of Appeals remanded the cause with instructions to enter a narrower order, the terms of which it prescribed. The substance of those terms is as follows: “[PJlaintiffs [Dollars] are entitled to possession of the shares as against defendants, and the defendants are ordered and directed to deliver forthwith to the plaintiffs the said shares. The possession to which plaintiffs are entitled is an effective possession of the shares. In so far as such right requires action on the part of defendants in addition to physical delivery of the certificates, such action is hereby directed to be taken. Plaintiffs are entitled under this judgment to all rights belonging to possessors of the shares.” 88 U. S. App. D. C.-,-, 188 F. 2d 629, 631. In further explanation of its order the Court stated: “The District Court is directed to enforce obedience to its order, as herein modified, whether effective process is against the present named defendants or is against another official, or other officials, against whom the order might be lawfully enforced if he or they were a party or parties to the suit. “If the Secretary of Commerce now has custody or possession of the shares, he obviously acquired such custody or possession since the beginning of this action, indeed since the order of June 11, 1947 [prohibiting transfer of the stock pendente lite}. Obedience to the order about to be entered pursuant to this opinion is, therefore, enforceable against him, and he is liable under Rule 71, supra, to the same process for enforcing obedience to that order as if he were a party.” 88 U. S. App. D. C. -, -, 188 F. 2d 629, 632. 4. We were asked to grant certiorari to review this order for enforcement. On March 12, 1951, we refused. 340 U. S. 948. It was at this point that we refused to reconsider our refusal to review the decision on the merits. 5. Accordingly, the case went back to the District Court. That court entered two orders on March 16. The first was in the terms prescribed by the Court of Appeals. The second was designed to enforce the judgment against the Secretary of Commerce, who, under a Presidential Reorganization Plan, had succeeded the Maritime Commission as custodian of the stock shortly before the Court of Appeals entered its decision on the merits. This order directed the Secretary to endorse the stock certificates in his possession in blank, by writing on them the words, “United States Maritime Commission, by Charles Sawyer, Secretary of Commerce.” It required further that he deliver the stock to a representative of the Dollars, and that he instruct the corporation to make the transfers of record. In the event that the Secretary failed to endorse the stock before delivery or to issue the instructions prior to March 17, the Clerk of the District Court was directed to perform these acts in his place. 97 F. Supp. 60. 6. Meanwhile, a new proceeding got under way. On March 12, the day we denied certiorari to the decision of the Court of Appeals modifying the order on mandate, the Government filed a complaint in the District Court for the Northern District of California, Southern Division. In this action, the United States was named as plaintiff, and sought relief by injunction, declaratory judgment, and damages against the Dollar shareholders, the corporation, and the transfer agents responsible for the stock. The claim urged was substantially the same as that which Government counsel for members of the Maritime Commission had unsuccessfully advanced in the litigation in the District of Columbia which culminated in the judgment against the individual defendants. 7. On March 19, the Government moved for a preliminary injunction in this California litigation. It requested that the Dollars be restrained from “exercising or attempting to exercise any rights or privileges as the owners” of the stock, from making demands upon the corporation that new certificates be issued in their name, and from transferring the stock certificates in their possession. The Government supported its motion by an affidavit of the present Chairman of the Federal Maritime Board. On the basis of a report of the Maritime Commission to the Congress on April 10, 1939, which referred to the Dollar management as “shockingly incompetent” and charged it with drawing excessive salaries from the corporation and with “[fjailure to maintain adequate service from the West Coast to the Orient,” the Chairman stated that “[sjhould inefficient management replace the existing management” of the corporation, “grave danger exists that this important unit of the American Merchant Marine may deteriorate as it did before when under the control of plaintiffs in the case of R. Stanley Dollar et al. v. Emory S. Land et al.” On April 6 the District Judge announced that he would issue a temporary restraining order. See 97 F. Supp. 50. 8. That order, dated April 11, is in pertinent part as follows: “Now, therefore, it is hereby ordered by this Court that, in order to preserve the status quo pending the determination by this Court as to whether plaintiff on the one hand, or the [Dollars] ... on the other hand, are the lawful owners of said stock, the [Dollars] ... be and they hereby are, enjoined pending the entry official judgment in this action, from exercising or attempting to exercise any rights or privileges as owners of stock certificates . . . , and from making any demands upon [the corporation or its agents] . . . that new certificates representing said shares of stock ... be issued to [the Dollars] ... , or that said [Dollars] be registered as the owners of the shares of stock represented by said certificates . . . , and from pledging, selling, transferring, or otherwise disposing of said stock certificates and the shares of stock represented thereby, and “It is further ordered by this Court that [the corporation and its agents] ... be, and they hereby are, restrained, pending the entry of final judgment in this action, from issuing any new certificates of stock of [the corporation] representing said shares to [the Dollars] . . . , from registering or recording [the Dollars] ... as owners of any of the shares of stock . . . , and from in any way recognizing said [Dollars] ... , as the lawful owners of said shares of stock or said certificates.” 9. While these proceedings were taking place in California, appeals were taken to the Court of Appeals for the District of Columbia Circuit from the two orders entered by the District Court for the District of Columbia on March 16. The Secretary of Commerce and the members of the Maritime Commission urged as grounds for reversal that the lower court had misconstrued the mandate of the Court of Appeals, and had jeopardized the United States’ claim of title by giving the Dollars power to transfer the stock to a bona fide purchaser for value. They did not assert as grounds for reversing the orders that the Dollars were likely so to mismanage the corporation that assets to which the United States might ultimately be entitled would be wasted. On April 4 the Court dismissed the appeals, without opinion. At the same time it took under advisement a motion to impose sanctions on the representatives of the Government. 10. The Court of Appeals acted on the motion to impose sanctions by orders dated April 10, for reasons indicated in a statement read in open court on April 6 and an opinion filed on April 11, 1951. 88 U. S. App. D. C. -, 190 F. 2d 366. (a) It issued an order requiring the Secretary of Commerce, the Solicitor General, and other officials of the Department of Justice and of the corporation to show cause why they should not be held in contempt for disobedience to the orders of the courts of the District of Columbia. It based this order in part on allegations that the respondents “refused to endorse the certificates and refused to instruct the transfer agent to transfer the shares” as directed by the Court. Instead, respondents “executed proxies in their own names after the decree of this court was known to them,” and “warned, in writing, the transfer agent of the corporation not to transfer the shares of stock.” In part, the order was based on the allegation that respondents “sought and obtained from the District Court in Northern California an injunction against the Dollar interests, restraining them from attempting to secure compliance with the decree of this court.” 88 U. S. App. D. C. at-, 190 F. 2d at 374. The proceedings to which this order has led are not before us on this petition. (b) The Court of Appeals issued a restraining order also directed to the Secretary of Commerce, the Solicitor General, and officers of the Department of Justice and the corporation. It recited that these respondents “caused to be instituted” the California suit, and that “in said action said respondents have sought in the name of the United States relief which is contrary to, inconsistent with, and in nullification of this Court’s decisions and orders” in the case. It stated at the hearing on the order that it was not deciding “whether the United States might seek ancillary injunctive relief in any other respect; that is, in any respect save only the defeat and nullification of a judgment already finally entered by a court of competent jurisdiction.” It ordered that the respondents, their agents, attorneys, and all persons in active concert with any of them “be and they hereby are enjoined and restrained until further order of this Court from proposing, seeking or advocating any step in any proceeding, whether in said suit entitled United States v. R. Stanley Dollar, et al., or in any other proceeding, inconsistent with strict compliance with and obedience to the orders heretofore entered by this Court in this cause. “AND IT IS FURTHER ORDERED that said persons are and each of them is enjoined and restrained until further order of this Court from complying with, taking advantage of, or utilizing, or seeking to comply with, utilize or take advantage of said temporary injunction issued by the United States District Court for the Northern District of California, Southern Division, in said cause entitled United States v. R. Stanley Dollar, et al., or any order of similar tenor which may hereafter be entered by said court or any other court.” We have before us for review on this petition (1) the order of the Court of Appeals for the District of Columbia Circuit dismissing appeals from the orders entered by the District Court on March 16 directing that the stock be delivered to the Dollars; (2) the restraining order issued by the Court of Appeals for the District of Columbia Circuit on April 10. Three other matters concerning this litigation are also now before the Court. They are referred to in a per curiam opinion. This memorandum does not address itself to them. By Mr. Justice Jackson. Respondents ask the full Court to vacate a stay, of proceedings granted by The Chief Justice. I regret that I cannot acquiesce in summary disposition of the motion, for I think the circumstances require the Court to set it down for prompt argument and act only after hearing both sides. This Court examined the decision of the Court of Appeals that the Dollar interests were entitled to the stock in question and decided that it did not merit further review. 87 U. S. App. D. C. 214, 184 F. 2d 245. Certio-rari denied, 340 U. S. 884. The courts below properly understood that we then regarded that litigation as ended and the District Court entered its mandate. When complete compliance was withheld, the mandate was modified to order officials to deliver up “effective possession” of the stock. Certiorari was sought from this enforcement order and we were also again asked to review the merits. We denied both. 340 U. S. 948. To date, “effective possession” has not been delivered. We may have been right or we may have been wrong in these repeated denials of review. But what the Court of Appeals has now done is try to effectuate a judgment that wé, by refusal to review, in effect have confirmed. Denial by the full Court of this motion fixes it as the Court’s policy to suspend enforcement indefinitely, certainly so long as any phase of this matter is pending here. Successive stays will issue as of course until we decide this and perhaps also the case recently commenced in California. No one knows for how long this will continue. My prediction would be in terms of years rather than months. Certainly both the appearance and substance of justice require that the parties be heard before the Court denies respondents, for an indefinite period, the benefits of the judgment they have won. We should not overlook the fact that management of this shipping concern is kept out of the hands of those whom years of litigation have adjudged to be its owners, and no protection by bond, condition of the order, or otherwise is provided for them during such time as it is kept in the hands adjudged to have it illegally. This Court, now asked to vacate the stay order, denies the motion without hearing either of the parties. This matter has become one of considerable delicacy and I should not, in effect, approve an indefinite stay of proceedings without hearing all the argument and information that either party can offer. I do not think denial without hearing is prudent judicial action. No legitimate interest could suffer from a hearing and we would surely be better informed as a result of it. Even if the parties themselves are not strictly entitled to or do not want to argue this motion, I should require them to do so, for hearings are more important here for the benefit of the Court, as a protection against unwise decision, than for benefit of the parties. It is the Court that is now on trial. When the shoe of contempt was on the other foot, we strongly supported the Government’s demand for complete submission to court decrees, even before they were sustained by this Court and though their validity was reasonably in doubt. On this basis a heavy fine was levied against the United Mine Workers. United States v. United Mine Workers, 330 U. S. 258. See also McComb v. Jacksonville Paper Co., 336 U. S. 187. The spectacle of this Court stalling the enforcement efforts of lower courts while there is outstanding a judgment that some of the Nation’s high officials are guilty of contempt of court is not wholesome. The evil influence of such an example will be increased by delay. This Court should exercise utmost care lest it appear to be indifferent to a claim of official disobedience. Moreover, we owe something in this matter to the Court of Appeals. That court held several hearings, considered every phase of this case in careful and exhaustive opinions, and made detailed findings of fact. It embarked on this effort at enforcement only after this Court had refused to review the basic orders. They were clearly justified in believing that we expected the order to be enforced. Surely we do not want to confirm Mr. Dooley’s observation to the effect that an appeal is an occasion for one court to show its contempt for another. Being outvoted as to the stay, however, I think it is owing to the Court itself, to the courts below, and to both litigants, to hear and decide the controversial orders without delay. Any denial of this motion or continuance of the stay should be conditioned upon a shortening of the time of all parties and an argument of the cases on the merits within two weeks, deferring the Court’s adjournment until the controversy is finally cleared up. If the Court of Appeals is wrong, we should promptly vindicate the officials involved. If that court is right, we should not waver in upholding its hand. I withhold my assent from the per curiam opinion of today. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Jackson delivered the opinion of the Court. These appeals challenge the validity of the Labor Relations Act of the State of New York as applied to appellants to permit unionization of their foremen. Conflict is asserted between it and the National Labor Relations Act and hence with the Commerce Clause of the Constitution. After enactment by Congress of the National Labor Relations Act, July 5, 1935, 49 Stat. 449, 29 U. S. C. § 151, et seq., New York adopted a State Labor Relations Act following the federal pattern. Laws of New York, 1937, Chap. 443, 30 McKinney’s Consolidated Laws of New York, §§ 700-716. In the administrative boards they create, the procedures they establish, the unfair labor practices prohibited, the two statutes may be taken for present purposes to be the same. But in provision for determination of units of representation for bargaining purposes, the two Acts are not identical. Their differences may be made plain by setting forth § 9 (b) of the Federal Act, with that part which is omitted from the State Act in brackets and additions made by the State Act as amended, Laws of New York, 1942, Chap. 518, in italics: “The Board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization [and] to collective bargaining, and otherwise to effectuate the policies of this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, multiple employer unit, craft unit, plant unit, or [subdivision thereof] any other unit; provided, however, that in any case where the majority of employees of a particular craft shall so decide the board shall designate such craft as a unit appropriate for the purpose of collective bargaining ” The procedures prescribed for the two boards for investigation, certification, and hearing on representation units and for their election are substantially the same except that the State law adds the following limitation not found in the Federal Act: “... provided, however, that the board shall not have authority to investigate any question or controversy between individuals or groups within the same labor organization or between labor organizations affiliated with the same parent labor organization.” Laws of New York, 1937, Chap. 443, as amended, Laws 1942, Chap. 518, 30 McKinney’s Consolidated Laws of New York, § 705.3. The two boards have at times pursued inconsistent policies in applying their respective Acts to petitions of foremen as a.class to organize bargaining units thereunder. The State Board has in these cases recognized that right; the National Board for a time recognized it. Union Collieries Coal Co., 41 N. L. R. B. 961; Godchaux Sugars, Inc., 44 N. L. R. B. 874. Later, there was a period when, for policy reasons but without renouncing jurisdiction, it refused to approve foremen organization units. Maryland Drydock Co., 49 N. L. R. B. 733; Boeing Aircraft Co., 51 N. L. R. B. 67; General Motors Corp., 51 N. L. R. B. 457. Now, again, it supports their right to unionize. Packard Motor Car Co., 61 N. L. R. B. 4, 64 N. L. R. B. 1212; L. A. Young Spring & Wire Corp., 65 N. L. R. B. 298. The foremen of these appellants, at a time when their desire to organize was frustrated by the policy of the National Board, filed applications with the State Board. It entertained their petitions and its policy permitted them as a class to become a bargaining unit. Both employers, by different methods adequate under State law to raise the question, challenged the constitutionality of the State Act as so applied to them. Their contentions ultimately were considered and rejected by the New York Court of Appeals and its decisions sustaining state power over the matter were brought here by appeals. Both of these labor controversies arose in manufacturing plants located in New York where the companies employ large staffs of foremen to supervise a much larger force of labor. But both concerns have such a relation to interstate commerce that, for the reasons stated in National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, federal power reaches their labor relations. On this basis the National Board has exercised power to certify bargaining agents for units of employees other than foremen of both companies. Matter of Allegheny Ludlum Steel Corporation, Case No. III-R-411, N. L. R. B., June 29, 1942; Matter of Bethlehem Steel Corp. and C. I. O., 30 N. L. R. B. 1006, 32 N. L. R. B. 264, 1941 (production and maintenance employees); Matter of Bethlehem Steel Corp. and A. F. of L., 47 N. L. R. B. 1330, 1943 (plant protection employees); Matter of Bethlehem Steel Corporation and C. I. O., 52 N. L. R. B. 1217, 1943 (employees in order department); Matter of Bethlehem Steel Co. and A. F. of L., 55 N. L. R. B. 658, 1944 (fire department employees). The companies contend that the National Board’s jurisdiction over their labor relations is exclusive of state power; the State contends on the contrary that while federal power over the subject is paramount, it is not exclusive and in such a case as we have here, until the federal power is actually exercised as to the particular employees, State power may be exercised. At the time the courts of the State of New York were considering this issue, the question whether the Federal Act would authorize or permit unionization of foremen was in controversy and was unsettled until our decision in Packard Motor Car Co. v. N. L. R. B., 330 U. S. 485. Whatever constitutional issue may have been presented by earlier phases of the evolution of the federal policy in relation to that of the State, the question now is whether, Congress having undertaken to deal with the relationship between these companies and their foremen, the State is prevented from doing so. Congress has not seen fit to lay down even the most general of guides to construction of the Act, as it sometimes does, by saying that its regulation either shall or shall not exclude state action. Cf. Securities Act of 1933, § 18, 48 Stat. 85, 15 U. S. C. § 77r; Securities Exchange Act of 1934, § 28, 48 Stat. 903, 15 U. S. C. § 78bb; United States Warehouse Act, § 29, before and after 1931 amendment, 39 Stat. 490, 46 Stat. 1465, 7 U. S. C. § 269. Our question is primarily one of the construction to be put on the Federal Act. It long has been the rule that exclusion of state action may be implied from the nature of the legislation and the subject matter although express declaration of such result is wanting. Napier v. Atlantic Coast Line R. Co., 272 U. S. 605. In determining whether exclusion of state power will or will not be implied, we well may consider the respective relation of federal and state power to the general subject matter as illustrated by the case in hand. These companies are authorized to do business in New York State, they operate large manufacturing plants in that state, they draw their labor supply from its residents, and the impact of industrial strife in their plants is immediately felt by state police, welfare and other departments. Their labor relations are primarily of interest to the state, are within its competence legally and practically to regulate, and until recently were left entirely to state control. Thus, the subject matter is not so “intimately blended and intertwined with responsibilities of the national government” that its nature alone raises an inference of exclusion. Cf. Hines v. Davidowitz, 312 U. S. 52, 66. Indeed, the subject matter is one reachable, and one which Congress has reached, under the federal commerce power, not because it is interstate commerce but because under the doctrine given classic expression in the Shreveport case, Congress can reach admittedly local and intrastate activities “having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance.” Houston & Texas Ry. v. United States, 234 U. S. 342, 351. See also National Labor Relations Board v. Fainblatt, 306 U. S. 601. In the National Labor Relations Act, Congress has sought to reach some aspects of the employer-employee relation out of which such interferences arise. It has dealt with the subject or relationship but partially, and has left outside of the scope of its delegation other closely related matters. Where it leaves the employer-employee relation free of regulation in some aspects, it implies that in such matters federal policy is indifferent, and since it is indifferent to what the individual of his own volition may do we can only assume it to be equally indifferent to what he may do under the compulsion of the state. Such was the situation in Allen-Bradley Local v. Board, 315 U. S. 740, where we held that employee and union conduct over which no direct or delegated federal power was exerted by the National Labor Relations Act is left open to regulation by the state. However, the power of the state may not so deal with matters left to its control as to stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hill v. Florida, 325 U. S. 538, 542. Cf. Maurer v. Hamilton, 309 U. S. 598. When Congress has outlined its policy in rather general and inclusive terms and delegated determination of their specific application to an administrative tribunal, the mere fact of delegation of power to deal with the general matter, without agency action, might preclude any state action if it is clear that Congress has intended no regulation except its own. Oregon-Washington Co. v. Washington, 270 U. S. 87. In other cases, Congress has passed statutes which initiate regulation of certain activities, but where effective regulation must wait upon the issuance of rules by an administrative body. In the interval before those rules are established, this Court has usually held that the police power of the state may be exercised. Northwestern Bell Telephone Co. v. Nebraska State Commission, 297 U. S. 471; Welch Co. v. New Hampshire, 306 U. S. 79. But when federal administration has made comprehensive regulations effectively governing the subject matter of the statute, the Court has said that a state regulation in the field of the statute is invalid even though that particular phase of the subject has not been taken up by the federal agency. Napier v. Atlantic Coast Line R. Co., 272 U. S. 605. However, when federal administrative regulation has been slight under a statute which potentially allows minute and multitudinous regulation of its subject, cf. Atlantic Coast Line R. Co. v. Georgia, 234 U. S. 280, or even where extensive regulations have been made, if the measure in question relates to what may be considered a separable or distinct segment of the matter covered by the federal statute and the federal agency has not acted on that segment, the case will be treated in a manner similar to cases in which the effectiveness of federal supervision awaits federal administrative regulation, Northwestern Bell Telephone Co. v. Nebraska State Commission, supra; Welch Co. v. New Hampshire, supra. The states are in those cases permitted to use their police power in the interval. Terminal Railroad Assn. v. Brotherhood of Railroad Trainmen, 318 U. S. 1. However, the conclusion must be otherwise where failure of the federal officials affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute. Napier v. Atlantic Coast Line, 272 U. S. 605; compare Oregon-Washington Co. v. Washington, 270 U. S. 87, with Parker v. Brown, 317 U. S. 341; cf. Mintz v. Baldwin, 289 U. S. 346. It is clear that the failure of the National Labor Relations Board to entertain foremen’s petitions was of the latter class. There was no administrative concession that the nature of these appellants’ business put their employees beyond reach of federal authority. The Board several times entertained similar proceedings by other employees whose right rested on the same words of Congress. Neither did the National Board ever deny its own jurisdiction over petitions because they were by foremen. Soss Manufacturing Co., 56 N. L. R. B. 348. It made clear that its refusal to designate foremen’s bargaining units was a determination and an exercise of its discretion to determine that such units were not appropriate for bargaining purposes. Maryland Drydock Co., 49 N. L. R. B. 733. We cannot, therefore, deal with this as a case where federal power has been delegated but lies dormant and unexercised. Comparison of the State and Federal statutes will show that both governments have laid hold of the same relationship for regulation, and it involves the same employers and the same employees. Each has delegated to an administrative authority a wide discretion in applying this plan of regulation to specific cases, and they are governed by somewhat different standards. Thus, if both laws are upheld, two administrative bodies are asserting a discretionary control over the same subject matter, conducting hearings, supervising elections and determining appropriate units for bargaining in the same plant. They might come out with the same determination, or they might come out with conflicting ones as they have in the past. Cf. Matter of Creamery Package Mfg. Co., 34 N. L. R. B. 108; Wisc. Emp. Rel. Bd. Case III, No. 348 E-117. But the power to decide a matter can hardly be made dependent on the way it is decided. As said by Mr. Justice Holmes for the Court, “When Congress has taken the particular subject-matter in hand coincidence is as ineffective as opposition....” Charleston R. Co. v. Varnville Co., 237 U. S. 597, 604. See also Southern Railway Co. v. Railroad Commission of Indiana, 236 U. S. 439, 448; Missouri Pacific R. R. v. Porter, 273 U. S. 341, 345-6. If the two boards attempt to exercise a concurrent jurisdiction to decide the appropriate unit of representation, action by one necessarily denies the discretion of the other. The second to act either must follow the first, which would make its action useless and vain, or depart from it, which would produce a mischievous conflict. The State argues for a rule that would enable it to act until the federal board had acted in the same case. But we do not think that a case by case test of federal supremacy is permissible here. The federal board has jurisdiction of the industry in which these particular employers are engaged and has asserted control of their labor relations in general. It asserts, and rightfully so, under our decision in the Packard case, supra, its power to decide whether these foremen may constitute themselves a bargaining unit. We do not believe this leaves room for the operation of the state authority asserted. The National and State Boards have made a commendable effort to avoid conflict in this overlapping state of the statutes. We find nothing in their negotiations, however, which affects either the construction of the federal statute or the question of constitutional power insofar as they are involved in this case, since the National Board made no concession or delegation of power to deal with this subject. The election of the National Board to decline jurisdiction in certain types of cases, for budgetary or other reasons presents a different problem which we do not now decide. We therefore conclude that it is beyond the power of New York State to apply its policy to these appellants as attempted herein. The judgments appealed from are reversed and the causes remanded for further proceedings not inconsistent herewith. Reversed. Separate opinion of Mr. Justice Frankfurter, in which Mr. Justice Murphy and Mr. Justice Rutledge join. The legal issue in these cases derives from our decision in Packard Motor Car Co. v. National Labor Relations Board, 330 U. S. 485. The Court there held that foremen are “employees” within § 2 (3) of the National Labor Relations Act, 49 Stat. 449, 450, and as such are entitled to the rights of self-organization under the Act. As the Packard case points out, the exercise of this authority over foremen has had a chequered history before the National Labor Relations Board. There was a period when the Board in the exercise of its discretion denied resort to its authority by foremen seeking collective bargaining representation. During that period, foremen of the two petitioning steel companies invoked the jurisdiction of the New York State Labor Board to certify them as a bargaining unit under the New York law descriptively characterized as a “Little Wagner Act” because it enforces the same policies by the same means as does the Wagner Act. The State Board assumed jurisdiction and the New York Court of Appeals sustained that assumption. Our problem is whether the National Labor Relations Act in its entirety—the law as Congress gave it to the National Board for administration—precluded this exercise of State authority. If the Court merely held that, having given the National Board jurisdiction over foremen Congress also gave it discretion to determine that it may be undesirable, as a matter of industrial relations, to compel recognition of foremen’s unions; that the Board had so exercised its discretion and, by refusing to sanction foremen’s unions, had determined that foremen in enterprises like those before us could not exact union recognition; that therefore New York could not oppose such federal action by a contrary policy of its own, I should concur in the Court’s decision, whatever the differences of interpretation to which the course of events before the National Board may lend itself. But the Court’s opinion does not, as I read it, have that restricted scope, based on the individual circumstances before us. Apart from the suggestion that the National Board’s declination of jurisdiction “in certain types of cases, for budgetary or other reasons” might leave room for the State in those situations, the Court’s opinion carries at least overtones of meaning that, regardless of the consent of the National Board, New York is excluded from enforcing rights of collective bargaining in all industries within its borders as to which Congress has granted opportunity to invoke the authority of the National Board. The inability of the National Board to exercise its dormant powers because of lack of funds ought not to furnish a more persuasive reason for finding that concurrent State power may function than a deliberate exercise of judgment by the National Board that industrial relations having both national and state concern can most effectively be promoted by an appropriate division of administrative resources between the National and the State Boards. This states abstractly a very practical situation. Based on the realization that as a practical matter the National Board could not effectuate the policies of the Act committed to it over the whole range of its authority, an arrangement was worked out whereby the National Board leaves to the State Board jurisdiction over so-called local industries covered by the federal Act, while the State Board does not entertain matters over which the National Board has consistently taken jurisdiction. This practical Federal-State working arrangement, arrived at by those carrying the responsibility for breathing life into the bare bones of legislation, is so relevant to the solution of the legal issues arising out of State-Nation industrial interaction, that I have set forth the agreement in full in an Appendix. Particularly when dealing with legal aspects of industrial relations is it important for courts not to isolate legal issues from their workaday context. I cannot join the Court’s opinion because I read it to mean that it is beyond the power of the National Board to agree with State agencies enforcing laws like the Wagner Act to divide, with due regard to local interests, the domain over which Congress had given the National Board abstract discretion but which, practically, cannot be covered by it alone. If such cooperative agreements between State and National Boards are barred because the power which Congress has granted to the National Board ousted or superseded State authority, I am unable to see how State authority can revive because Congress has seen fit to put the Board on short rations. Since we are dealing with aspects of commerce between the States that are not legally outside State action by virtue of the Commerce Clause itself, New York has authority to act so long as Congress has not interdicted her action. While what the State does she does on sufferance, in ascertaining whether Congress has allowed State action we are not to consider the matter as though Congress were conferring a mere bounty, the extent of which must be viewed with a thrifty eye. When construing federal legislation that deals with matters that also lie within the authority, because within the proper interests, of the States, we must be mindful that we are part of the delicate process of adjusting the interacting areas of National and State authority over commerce. The inevitable extension of federal authority over economic enterprise has absorbed the authority that was previously left to the States. But in legislating, Congress is not indulging in doctrinaire, hard-and-fast curtailment of the State powers reflecting special State interests. Federal legislation of this character must be construed with due regard to accommodation between the assertions of new federal authority and the functions of the individual States, as reflecting the historic and persistent concerns of our dual system of government. Since Congress can, if it chooses, entirely displace the States to the full extent of the far-reaching Commerce Clause, Congress needs no help from generous judicial implications to achieve the supersession of State authority. To construe federal legislation so as not needlessly to forbid preexisting State authority is to respect our federal system. Any indulgence in construction should be in favor of the States, because Congress can speak with drastic clarity whenever it chooses to assure full federal authority, completely displacing the States. This is an old problem and the considerations involved in its solution are commonplace. But results not always harmonious have from time to time been drawn from the same precepts. In law also the emphasis makes the song. It may make a decisive difference what view judges have of the place of the States in our national life when they come to apply the governing principle that for an Act of Congress completely to displace a State law “the repugnance or conflict should be direct and positive, so that the two acts could not be reconciled or consistently stand together.” Sinnot v. Davenport, 22 How. 227, 243. Congress can speak so unequivocally as to leave no doubt. But real controversies arise only when Congress has left the matter in doubt, and then the result depends on whether we require that actual conflict between State and federal action be shown, or whether argumentative conflict suffices. Our general problem was only recently canvassed in the three opinions in Hill v. Florida, 325 U. S. 538. But the frequent recurrence of the problem and the respective legislative and judicial share in its proper solution justify some repetition. It may be helpful to recall the circumspection with which federal absorption of authority previously belonging to the States was observed in the control of railroad rates. In the Minnesota Rate Cases, 230 U. S. 352, this Court, after elaborate argument and extended consideration, held that State rates covering intrastate transportation could not be stricken down judicially even though it may be shown that such rates adversely affect carriers in their interstate aspects. This decision was based largely on the respect to be accorded to the respective functions of State and national authority, as evinced by Congressional and judicial history. But a year later, the Court held that when the Interstate Commerce Commission found that State regulation of local rates was designed to operate discriminatorily against related interstate commerce, the Interstate Commerce Act authorized removal of the discrimination against the interstate rates. Houston, East and West R. Co. v. United States, 234 U. S. 342. Nevertheless, so important did this Court deem respect for State power that it would not allow the Shreveport doctrine to be loosely used as a curtailment of State authority. Accordingly, it insisted on precision and definiteness in the orders of the Interstate Commerce Commission in this interacting area. Illinois Central R. Co. v. State Public Utilities Commission, 245 U. S. 493. Subsequently, by the Transportation Act of 1920, Congress formalized the Shreveport doctrine and extended its scope. The Commission was expressly authorized to correct State rates that were unreasonable with reference to related interstate rates, and was also given control over State rates which adversely affected interstate commerce as such. See § 13, par. 4 of the Interstate Commerce Act, as amended by §§ 416 and 422 of the Transportation Act of 1920, 41 Stat. 456, 484, 488; Wisconsin Railroad Commission v. C. B. & Q. R. R. Co., 257 U. S. 563; New York v. United States, 257 U. S. 591. It is not without significance that in exercising this new power Congress associated with the Interstate Commerce Commission the appropriate State agencies in an advisory capacity. Even where foreign commerce is involved, as to which State control is naturally viewed with less favor, this Court has not ruled out State authority derived from a State interest where State regulation was found to be complementary to federal regulation. Union Brokerage Co. v. Jensen, 322 U. S. 202, 208-09. No doubt, as indicated, cases have not always dealt with such scrupulous regard for State action where Congress has not patently terminated it. Metaphor—“occupied the field”—has at times done service for close analysis. But the rules of accommodation that have been most consistently professed as well as the dominant current of decisions make for and not against the modus vivendi achieved by the two agencies in the labor relations field, which the Government, as amicus curiae, here sponsored. Such an arrangement assures the effectuation of the policies which underlie both the National Labor Relations Act and the “Little Wagner Act” of New York in a manner agreed upon by the two Boards for dealing with matters affecting interests of common concern. “Where the Government has provided for collaboration the courts should not find conflict.” Union Brokerage Co. v. Jensen, 322 U. S. 202, 209. What is before us is a very real and practical situation. The vast range of jurisdiction which the National Labor Relations Act has conferred upon the Board raises problems of administration wholly apart from available funds. As a result of this Court's decision in National Labor Relations Board v. Fainblatt, 306 U. S. 601, untold small enterprises are subject to the power of the Board. While labor difficulties in these units in the aggregate may unquestionably have serious repercussions upon interstate commerce, in their individualized aspects they are equally the concern of their respective localities. Accordingly, the National Labor Relations Board, instead of viewing the attempt of State agencies to enforce the principles of collective bargaining as an encroachment upon national authority, regards the aid of the State agencies as an effective means of accomplishing a common end. Of course, as Mr. Justice Holmes said, “When Congress has taken the particular subject-matter in hand coincidence is as ineffective as opposition” to save the State law. But surely this is so only when the State seeks “to enforce a state policy differently conceived....” Charleston & Western Carolina R. R. Co. v. Varnville Furniture Company, 237 U. S. 597, 604. The National Board’s business explains the reason and supports the reasonableness behind its desire to share burdens that may be the State’s concern no less than the Nation’s. The Board’s Annual Reports show increasing arrears. At the end of the fiscal year 1944, 2602 cases were pending; at the end of 1945, 3244; at the end of 1946, there were 4605 unfinished cases. A shrewd critic has thus expressed the considerations that in the past have often lain below the surface of merely doctrinal applications: “Formally the enterprise is one of the interpretation of the Act of Congress to discover its scope. Actually it is often the enterprise of reaching a judgment whether the situation is so adequately handled by national prescription that the impediment of further state requirements is to be deemed a bane rather than a blessing.” T. R. Powell, Current Conflicts Between the Commerce Clause and State Police Power, 12 Minn. L. Rev. 607. In the submission by the Board before us, we have the most authoritative manifestation by national authority that State collaboration would be a blessing rather than a bane, and yet judicial construction would forbid the aid which the agency of Congress seeks in carrying out its duty. It is surely a responsible inference that the the result will be to leave uncontrolled large areas of industrial conflict. Neither what Congress has said in the National Labor Relations Act, nor the structure of the Act, nor its policy, nor its actual operation, should be found to prohibit the Board from exercising its discretion so as to enlist the aid of agencies charged with like duties within the States in enforcing a common policy by a distribution of cases appropriate to respective State and National interests. APPENDIX. Documents Indicating Understanding Between the New York and the National Labor Relations Boards New York State Labor Relations Board 250 West 57th Street NEW YORK 19 William E. Grady, Jr. General Counsel July 10,1945. Alvin J. Rockwell, Esquire General Counsel, National Labor Relations Board, Washington, D. C. Dear Mr. Rockwell: The Board has examined your memorandum of our conference of April 20, 1945 and considers that it represents a fair statement of the proceedings. As to insurance companies (page 6 of your memo), you will recall that we mentioned our prior experience with such companies and the fact that units of less than statewide scope have been established and upheld by the courts. In such cases, therefore, we think it would be to the benefit of both Boards that you clear with us. A situation may very easily arise in which you would prefer to have us entertain a petition which had been filed with us. Best regards. Sincerely, /s/ William E. Grady, Jr. National Labor Relations Board, Washington 25, D. C., July 26,1945. William E. Grady, Jr., General Counsel, New York State Labor Relations Board, 250 West 57th Street, New York City 19, N. Y. Dear Mr. Grady: In Mr. Rockwell’s absence on vacation this week, I am replying to your letter of July 10. Mr. Rockwell’s memorandum of our conference of April 20 and your letter were discussed with and approved by the Members of the Board. We are, accordingly, circulating copies of this memorandum to the members of our staffs in the Buffalo and New York City offices. This memorandum and your letter will hereafter be followed as a guide in relations between the two Boards as regards cases arising in New York State. Sincerely yours, /s/ Oscar S. Smith Oscar S. Smith, Director of Field Division. Memorandum re Conference Between Representatives of New York State Labor Relations Board and National Labor Relations Board, Held Friday, April 20, 1945 A conference was held at the offices of the New York State Labor Relations Board on Friday, April 20, 1945, attended by Father Kelley, Chairman, and Board Members Goldberg and Lorenz, Executive Secretary Goldberg, General Counsel Grady, and Associate General Counsel Feldblum, of the New York State Labor Relations Board, and by Field Director Smith, New York Regional Director Howard LeBaron, General Counsel Rockwell, and New York Regional Attorney Perl, of the National Labor Relations Board. The subject of the conference was the proper division of jurisdiction between the National and State Boards. This conference followed an earlier conference held on January 9, 1945, in Washington, between Messrs. Smith and Rockwell and Buffalo Regional Director Ryder, representing the NLRB, and Messrs. Goldberg and Feldblum, representing the New York Board. At the conference in Washington, the principal subject discussed was the action of the State Board in entertaining election petitions involving the employees of large interstate manufacturing establishments over which the National Board has customarily asserted jurisdiction. The cases in question related to petitions filed by labor organizations which sought to be certified as representatives of units of supervisory employees or, in one case, a labor organization which sought to represent non-supervisory employees but whose membership was composed of a substantial number of supervisors. At the time of the January conference, the Board’s decision in the Packard case, 61 N. L. R. B., No. 3, had not been issued; it appeared that in certifying a labor organization for supervisory employees the State Board was taking action contrary to that which would have been taken by the National Board had the petition been filed with it. It was also believed that the action of the State Board in proceeding to a certification of a labor organization for non-supervisory employees whose membership included supervisors in substantial number might be contrary to the National Board’s disposition of the case under its decision in Matter of Rochester & Pittsburgh Coal Co., 56 N. L. R. B. 1760. No understanding was reached with regard to these types of cases at the January conference. In the meantime, on March 26, 1945, the Board issued its decision in the Packard case, holding that it would proceed to certify unaffiliated unions as representative of supervisory employees and leaving open the question of whether it would proceed to certify affiliated unions as such representatives. The New York conference was arranged in order to discuss the types of cases which were the subject of the January conference and also to canvass in general the question of the respective jurisdictions of the two Boards. The New York conference began with consideration of Father Boland’s letter to Mr. Madden dated July 12, 1937, which has constituted the principal basis of understanding between the two Boards during the ensuing years. The Boland letter states: Unless there are unusual circumstances, the New York State Labor Relations Board will assume jurisdiction over all cases arising in the following trades and industries, without clearing, except as a matter of record, with the National Board’s officials: 1. Retail stores, 2. Small industries which receive all or practically all raw materials from within the State of New York, and do not ship any material proportion of their product outside the State, 3. Service trades (such as laundries), 4. Office and residential buildings, 5. Small and clearly local public utilities, (This includes local traction companies, as well as gas and electric light corporations.) 6. Storage warehouses, 7. Construction operations, 8. Other obviously local businesses. A copy of the letter of July 12, 1937, is attached to this memorandum. At the time of the preparation of the letter of July 12 and the conference which preceded it and upon which it is based, there was relatively little case law as to the jurisdiction under the commerce clause of the National Board under the National Act. Since that time there has been a large number of decisions in the federal circuit courts of appeals and several in the Supreme Court which have substantially extended the Board’s jurisdiction beyond that which was understood to exist in July 1937. To take only one pertinent example: In July 1937 the Board had not asserted jurisdiction over retail establishments. Since 1937 the Board has accepted a considerable number of cases involving retail establishments such as department stores and the Board’s power in this respect has been sustained by the courts. Notwithstanding this extension of jurisdiction under the National Act, the National and State Boards, respectively, have, in general, followed the understanding reflected by the letter of July 12, 1937. Thus, in New York State the National Board has not asserted jurisdiction over retail establishments. The representatives at the conference of April 20 expressed the Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

J

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Me. Justice Beennan delivered the opinion of the Court. Section 5 of the Voting Rights Act of 1965 (Act), 79 Stat. 439, as amended, 42 U. S. C. § 1973c (1970 ed., Supp. V), requires that States, like Alabama, which are covered under § 4 of the Act, 79 Stat. 438, as amended, 42 U. S. C. § 1973b (1970 ed., Supp. V), obtain prior federal approval before changing any voting practice or procedure that was in effect on November 1, 1964. The questions for decision in this case are (1) whether § 5 requires an Alabama city that has never conducted voter registration to obtain preclearance of a voting change and (2), if so, whether the failure of the Attorney General of the United States to object to the holding of a referendum election at which a change is adopted constitutes federal approval of that change. I The city of Sheffield, Ala. (City or Sheffield), was incorporated in 1885 by the Alabama Legislature. As incorporated, the City was governed by a mayor and eight councilmen, two councilmen being elected directly from each ■ of the City’s four wards. Sheffield retained this mayor-council government until 1912 when it adopted a system in which three commissioners, elected by the City at large, ran the City. This commission form of government was in effect in Sheffield on November 1, 1964. Sometime prior to March 20, 1975, Sheffield decided to put to a referendum the question whether the City should return to a mayor-council form of government. On that date the president of the Board of Commissioners of Sheffield wrote the Attorney General of the United States to “give notice of the proposal of submitting to the qualified voters of the City, whether the present commission form of government shall be abandoned in favor of the Mayor and Alderman form of government.” On May 13,1975, before the Attorney General replied, the referendum occurred, and the voters of Sheffield approved the change. On May 23, the Attorney Genearl formally responded to Sheffield that he did “not interpose an objection to the holding of the referendum,” but that “[s]inee voters in the City of Sheffield elected to adopt the mayor-council form of government on May 13, 1975, the change is also subject to the preclearance requirements of Section 5.” The Attorney General’s letter also stated that in the event the City should elect to seek preclearance of the change from the Attorney General it should submit detailed information concerning the change, including a description of “the aldermanic form of government which existed in 1912 and the method by which it was elected, i. e., the number of aldermen, the terms and qualifications for the mayor and aldermen, whether the aldermen were elected at large or by wards, whether there were numbered post, residency, majority vote or staggered term requirements for the aldermanic seats, and whether single shot voting was prohibited.” Thereafter the City informed the Attorney General that the proposed change would divide the City into four wards of substantially equal population, that each ward would have two council seats, that councilmen from each ward would be elected at large, and that candidates would run for numbered places. Subsequently the City furnished a detailed map showing ward boundaries, data concerning the population distribution by race for each ward, and a history of black candidacy for city and county offices since 1965. The City’s submission was completed on May 5, 1976. On July 6, 1976, the Attorney General notified the City that while he did not “interpose any objection to the change to a mayor-council form of government... to the proposed district lines or to the at-large election of the mayor and the president of the council,” he did object to the implementation of the proposed at-large method of electing city councilmen because he was “unable to conclude that the at-large election of councilmen required to reside in districts will not have a racially discriminatory effect.” Notwithstanding the Attorney General’s objection, the City scheduled an at-large council election for August 10, 1976. On August 9, the United States instituted this suit in the District Court for the Northern District of Alabama to enforce its § 5 objection. A temporary restraining order was denied. After the election was held, a three-judge court was convened and that court dismissed the suit. 430 F. Supp. 786 (1977). The District Court unanimously held that Sheffield was not covered by § 6 because it is not a “political subdivision” as that term is defined in § 14 (c) (2) of the Act, 79 Stat. 446, 42 U. S. C. § 19731 (c)(2), which provides that “ 'political subdivision’ shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.” See 430 F. Supp., at 788-789 and 790-792. The court also held, one judge dissenting, that “by approving the referendum the Attorney General in fact approved the change to the Mayor-Council form of government [in which aldermen were elected at large] notwithstanding [his statement] to the City that the change was also subject to pre-clearance.” Id., at 789. The court reasoned that the approval of the referendum constituted clearance of those aspects of the proposed change that the Attorney General knew or should have known would be implemented if the referendum passed and that he should have known that Sheffield would be obliged to follow Ala. Code § 11-43-40 (1975) — formerly Ala. Code, Tit. 37, § 426 (Supp. 1973) — which requires the at-large election of aldermen in cities, like Sheffield, with populations of less than 20,000. 430 F. Supp., at 789-790. We noted probable jurisdiction. 433 U. S. 906 (1977). We reverse. II We first consider whether Congress intended to exclude from § 5 coverage political units, like Sheffield, which have never conducted voter registration. In concluding that Congress did, the District Court noted that § 5 applies to “a [designated] state or a [designated] political subdivision” and construed § 5 to provide that, where a State in its entirety has been designated for coverage, the only political units within it that are subject to § 5 are those that are “political subdivisions” within the meaning of § 14 (c)(2). Because § 14 (c) (2) refers only to counties and to the units of state government that register voters, the District Court held that political units like the City are not subject to the duties imposed by §5. There is abundant evidence that the District Court’s interpretation of the Act is contrary to the congressional intent. First, and most significantly, the District Court’s construction is inconsistent with the Act’s structure, makes § 5 coverage depend upon a factor completely irrelevant to the Act’s purposes, and thereby permits precisely the kind of circumvention of congressional policy that § 5 was designed to prevent. Second, the language of the Act does not require such a crippling interpretation, but rather is susceptible of a reading that will fully implement the congressional objectives. Finally, the District Court’s construction is flatly inconsistent with the Attorney General’s consistent interpretations of § 5 and with the legislative history of its enactment and re-enactments. The language, structure, history, and purposes of the Act persuade us that § 5, like the constitutional provisions it is designed to implement, applies to all entities having power over any aspect of the electoral process within designated jurisdictions, not only to counties or to whatever units of state government perform the function of registering voters. A Although this Court has described the workings of the Voting Rights Act in prior cases, see, e. g., Allen v. State Board of Elections, 393 U. S. 544 (1969); South Carolina v. Katzenbach, 383 U. S. 301 (1966), it is appropriate again to summarize its purposes and structure and the special function of § 5. Congress adopted the Act in 1965 to implement the Fifteenth Amendment and erase the blight of racial discrimination in voting. See 383 U. S., at 308. The core of the Act “is a complex scheme of stringent remedies aimed at areas where voting discrimination has been the most flagrant.” Id., at 315. Congress resorted to these stern measures because experience had shown them to be necessary to eradicate the “insidious and pervasive evil of [racial discrimination in voting] that had been perpetuated in certain parts of our country.” Id., at 309. Earlier efforts to end this discrimination by facilitating case-by-case litigation had proved ineffective in large part because voting suits had been “unusually onerous to prepare” and “exceedingly slow” to produce results. And even when favorable decisions had been obtained, the affected jurisdictions often “merely switched to discriminatory devices not covered by the federal decrees.” See id., at 313-314. The structure and operation of the Act are relatively simple. Sections 4 (a) and 4 (b) determine the jurisdictions that are subject to the Act’s special measures. Congress, having found that there was a high probability of pervasive racial discrimination in voting in areas that employed literacy tests or similar voting qualifications and that, in addition, had low voter turnouts or registration figures, provided that coverage in a State is “triggered” if it maintained any “test or device” on a specified date and if it had voter registration or voter turnout of less than 50% of those of voting age during specified Presidential elections. When this formula is not met in an entire State, coverage is triggered in any “political subdivision” within the State that satisfies the formula. Since § 4 (c) of the Act defines “test or device” as a “prerequisite for voting or registration for voting,” 79 Stat. 438, 42 U. S. C. § 1973b (c) (emphasis supplied), it is clear that the Attorney General, in making a coverage determination, is to consider not only the voter registration process within a jurisdiction, but also the procedures followed by the election officials at the polling places. A State or political subdivision which does not use literacy tests to determine who may register to vote but employs such tests at the polling places to- determine who may cast a ballot may plainly be covered under § 4 (b). If designated under §4(b), a jurisdiction will become subject to the Act’s special remedies unless it establishes, in a judicial action, that no “test or device” was used to discriminate on the basis of race in voting.' Section 4 (a) is one of the Act’s core remedial provisions. Because Congress determined that the continued employment of literacy tests and similar devices in covered areas would perpetuate racial discrimination, it suspended their use in § 4 (a). Just as the actions of every political unit that conducts elections are relevant under § 4 (b), so § 4 (a) imposes a duty on every entity in the covered jurisdictions having power over the electoral process, whether or not the entity registers voters. That § 4 (a) has this geographic reach is clear both from the fact that a “test or device” may be employed by any oficial with control over any aspect of an election and from § 4 (a)’s provision that its suspension operates “in any [designated] State... or in any [designated] political subdivision.” (Emphasis supplied.) The congressional objectives plainly required that § 4 (a) apply throughout each designated jurisdiction. If it did not have this scope, the covered States, which in the past had been so ingenious in their defiance of the spirit of federal law, could have easily circumvented § 4 (a) by, e. g., discontinuing the use of literacy tests to determine who may register but requiring that all citizens pass literacy tests at the polling places before voting. Although § 4 (a) is a potent weapon, Congress recognized that it alone would not ensure an end to racial discrimination in voting in covered areas. In the past, States and the political units within them had responded to federal decrees outlawing discriminatory practices by “resort [ing] to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination....” South Carolina v. Katzenbach, 383 U. S., at 335. To prevent any future circumvention of constitutional policy, Congress adopted § 5 which provides that whenever a designated State or political subdivision wishes to change its voting laws, it must first demonstrate to a federal instrumentality that the change will be nondiscriminatory. By freezing each covered jurisdiction’s election procedures, Congress shifted the advantages of time and inertia from the perpetrators of the evil to its victims. The foregoing discussion of the key remedial provisions of the Act belies the District Court’s conclusion that § 5 should apply only to counties and to the political units that conduct voter registration. As is apparent from the Act, § 5 “was'structured to assure the effectiveness of the dramatic step that Congress had taken in § 4” and “is clearly designed to march in lock-step with § 4....” Allen v. State Board of Elections, 393 U. S., at 584 (Harlan, J., concurring and dissenting). Since jurisdictions may be designated under §4 (b) by reason of the actions of election officials who do not register voters, and since § 4 (a) imposes duties on all election officials whether or not they are involved in voter registration, it appears to follow necessarily that § 5 has to apply to all entities exercising control over the electoral processes within the covered States or subdivisions. In any case, in view of the structure of the Act, it would be unthinkable to adopt the District Court’s construction unless there were persuasive evidence either that § 5 was intended to apply only to changes affecting the registration process or that Congress clearly manifested an intention to restrict § 5 coverage to counties or to the units of local government that register voters. But the Act supports neither conclusion. The terms of the Act and decisions of this Court clearly indicate that § 5 was not intended to apply only to voting changes occurring within the registration process. Section 5 applies to “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting....” Since the statutory definition of “voting” includes “all action necessary to make a vote effective in any... election, including, but not limited to, registration,... casting a ballot, and having such ballot counted properly...,” 79 Stat. 445, 42 U. S. C. § 1973Í (c)(1), § 5’s coverage of laws affecting voting is comprehensive. The Court’s decisions over the past 10 years have given § 5 the broad scope suggested by the language of the Act. We first construed it in Allen v. State Board of Elections, supra. There our examination of the Act’s objectives and original legislative history led.us to interpret § 5 to give it “the broadest possible scope,” 393 U. S., at 567, and to require prior federal scrutiny of “any state enactment which altered the election law in a covered State in even a minor way.” Id., at 566. In so construing § 5, we unanimously rejected —as the plain terms of the Act would themselves have seemingly required — the argument of an appellee that § 5 should apply only to enactments affecting who may register to vote. 393 U. S., at 564. Our decisions have required federal preclearance of laws changing the location of polling places, see Perkins v. Matthews, 400 U. S. 379 (1971), laws adopting at-large systems of election, ibid.; Fairley v. Patterson (decided with Allen, supra); laws providing for the appointment of previously elected officials, Bunton v. Patterson (decided with Allen, supra); laws regulating candidacy, Whitley v. Williams (decided with Allen, supra); laws changing voting procedures, Allen, supra; annexations, City of Richmond v. United States, 422 U. S. 358 (1975); City of Petersburg v. United States, 410 U. S. 962 (1973), summarily aff'd 354 F. Supp. 1021 (DC 1972); Perkins v. Matthews, supra; and reapportionment and redistricting, Beer v. United States, 425 U. S. 130 (1976); Georgia v. United States, 411 U. S. 526 (1973); see United. Jewish Organizations v. Carey, 430 U. S. 144 (1977). In each case, federal scrutiny of the proposed change was required because the change had the potential to deny or dilute the rights conférred by § 4 (a). Significantly, in several of these cases, this Court decided that § 5’s preclearance requirement applied to cities within designated States without ever inquiring whether the cities conducted voter registration. See Beer v. United States, supra; City of Richmond v. United States, supra; Perkins v. Matthews, supra. It is doubtful, moreover, that § 5 would have been held to be applicable in at least one of these cases if the District Court’s interpretation of § 5 were the law. Although the assumption of these decisions — that cities are covered whether or not they conduct voter registration — perhaps has little stare decisis significance — the issue not having been raised, but see Brown Shoe Co. v. United States, 370 U. S. 294, 307 (1962) — these decisions underscore the obvious fact that, whether or not they register voters, cities can enact measures with the potential to dilute or defeat the voting rights of minority group members, and they further illustrate that Congress could not have intended § 5’s duties to apply only to those cities that register voters. Because § 5 embodies a' judgment that voting changes occurring outside the registration process have the potential to discriminate in voting on the basis of race, it would be irrational for § 5 coverage to turn on whether the political unit enacting or administering the change itself registers voters. But quite apart from the fact that this cramped construction cannot be squared with any reasonable set of objectives, the District Court’s interpretation of § 5 would permit the precise evil that § 5 was designed to eliminate. Under it, local political entities like Sheffield would be free to respond to local pressure to limit the political power of minorities and take steps that would, temporarily at least, dilute or entirely defeat the voting rights of minorities, e. g., providing for the appointment of officials who previously had been elected, moving the polling places to areas of the city where minority group members could not safely travel, or even providing that election officials could not count the ballots of minority voters. The only recourse for the minority group members affected by such changes would be the one Congress implicitly found to be unsatisfactory: repeated litigation. See United Jewish Organizations v. Carey, supra, at 156. The District Court's reading of § 5 would thus place the advantages of time and inertia back on the perpetrators of the discrimination as to all elections conducted by political units that do not register voters, and, equally seriously, it would invite States to circumvent the Act in all other elections by allowing local entities that do not conduct voter registration to control critical aspects of the electoral process. The clear consequence of this interpretation would be to nullify both § 5 and the Act in a large number of its potential applications. B The terms of the Act do not require such an absurd result. In arriving at its interpretation of § 5, the District Court focused on its language “a State or political subdivision with respect to which the prohibitions set forth in [§ 4 (a)] based upon determinations made under [§4(b)] are in effect.” While § 5’s failure to use the phrase “in a [designated] State or subdivision” arguably provides a basis for an inference that § 5 ’was not intended to have the territorial reach of § 4 (a), the actual terms of § 5 suggest that its coverage is to be coterminous with § 4 (a)’s. The coverage provision of § 5 specifically refers to both § 4 (a) and § 4 (b), a fact which itself implies that § 4 — not § 14 (c) (2)- — -is to determine the reach of § 5. And the content of § 5 supports this view. Section 5 provides that it is to apply to the jurisdictions “with respect to which” §4 (a)’s prohibitions are in effect. Since the States or political subdivisions “with respect to which” §4(a)’s duties apply are entire territories and not just county governments or the units of local government that register voters, § 5 must, it would seem, apply territorially as well. Quite apart from the fact the textual interrelationship between § 4 (a) and § 5 affirmatively suggests that § 5 is to have a territorial reach, the operative language of the statute belies any suggestion that § 14 (c) (2) limits the scope of § 5. Where, as here, a State has been designated for coverage', the meaning of the term “political subdivision” has no operative significance in determining the reach of § 5: the only question is the meaning of “[designated] State.” There is no more basis in the statute or its history for treating § 14 (c) (2) as limiting the reach of § 5 than there is for treating it as limiting § 4 (a). Broader considerations support this construction of § 5’s terms. The Act, of course, is designed to implement the Fifteenth Amendment and, in some respects, the Fourteenth Amendment, see Katzenbach v. Morgan, 384 U. S. 641 (1966); South Carolina v. Katzenbach, 383 U. S. 301 (1966). One would expect that the substantive duties imposed in the Act, as in the constitutional provisions that it is designed to implement, would apply not only to governmental entities formally acting in the name of the State, but also to those political units that may exercise control over critical aspects of the voting process. Cf. Hunter v. Erickson, 393 U. S. 385 (1969); Terry v. Adams, 345 U. S. 461 (1953). It is, of course, the case that the term “State” does not have this meaning throughout the Act. For example, the Attorney General may not designate a city for coverage under § 4 (b) of the Act on the theory the city’s actions are often “state action”; for purposes of designation, “State” refers to a specific geographic territory in its entirety. But it is clear that once a State is designated for coverage the Act’s remedial provisions apply to actions that are not formally those of the State. Section 4 (a), of course, applies to all state actors, and even the legislative history relied upon by the District Court reveals the congressional understanding that the reference to “State” in § 5 includes political units within it. This alone would appear sufficient reason to make § 5’s preclearance requirement apply to all state action. So in view of the explicit textual relationship between § 4 and § 5, the irrelevance of § 14 (c) (2) to the meaning of “[designated] State,” and the critical role that § 5 is to play in securing the promise of § 4 (a), it is wholly logical to interpret “State... with respect to which” § 4 (a) is in effect as referring to all political units within it. Because the designated jurisdiction in this case is a State, we need not consider the question of how § 5 applies when a political subdivision is the designated entity. But we observe that a similar argument can be made concerning § 5’s reference to “[designated] political subdivision,” and this fact plainly supports our interpretation of § 5’s parallel reference to “[designated] State.” The legislative background of § 14 (c) (2)’s definition of “political subdivision” reflects that Congress intended to define “political subdivision” as areas of a nondesignated State, not only as functional units or levels of government. The conclusion clearly follows that this definition was intended to operate only for purposes of determining which political units in nondesignated States may be separately designated for coverage under §4 (b). Congress seemingly wished to ensure that just as, for example, a school board could not be separately, designated for coverage in the name of the State, so it could not be separately designated on the theory that it was a “political subdivision” of a State. By the same token, it is equally clear that Congress never intended the § 14 (c) (2) definition to limit the substantive reach of the Act's core remedial provision once an area of a nondesignated State had been determined to be covered; all state actors within designated political subdivisions are subject to § 4 (a). In view of the fact that “political subdivision” was understood as referring to an area of the State, the fact that the Act generally is aimed at all “state action” occurring within specified areas, and the textual interrelationship between § 4 (a) and § 5, it logically follows that where a political subdivision has been separately designated for coverage under § 4, all political units within it are subject to the preclearance requirement. C Finally, the legislative history and other related aids to ascertaining congressional intent leave little doubt but that Congress has always — and certainly by 1975 — been of the view that § 5, like §4 (a), applies territorially and includes political units like Sheffield whether or not they conduct voter registration. The specific narrow question was not extensively discussed at the time of original enactment, but there is little, if anything, in the original legislative history that in any way supports the crippling construction of the District Court. At least one statement made in the course of the debate over § 5 strongly suggests that Congress never intended to draw a distinction between cities that do and do not register voters. In support of an amendment that would have stricken § 5 from the Act, Senator Talmadge of Georgia — minutes before the Senate voted to reject his amendment — argued that the section was “far-fetched” because it would require any city which sought to enact or administer a voting change to obtain federal preclearance. Ill Cong. Rec. 10729 (1965). While- this statement was made by an opponent of the Act, its proponents, one of whom was on the floor defending § 5 at the time of Senator Talmadge’s assertion, see 111 Cong. Rec. 10728 (1965) (remarks of Sen. Tydings), did not disagree with his assessment. Thus, whatever Senator Talmadge’s intentions, his statement possesses significant pertinence. See Arizona v. California, 373 U. S. 546, 583 n. 85 (1963). What is perhaps a more compelling argument concerning the original, and subsequent, congressional understanding of the scope of § 5 is that the Attorney General has, since the Act was adopted in 1965, interpreted § 5 as requiring all political units in designated jurisdictions to preclear proposed voting changes. This contemporaneous administrative construction of the Act is persuasive evidence of the original understanding, especially in light of the extensive role the Attorney General played in drafting the statute and explaining its operation to Congress. See Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205, 210 (1972); Udall v. Tollman, 380 U. S. 1, 16 (1965) In recognition of the Attorney General’s key role in the formulation of the Act, this Court in the past has given great deference to his interpretations of it. See Perkins v. Mat thews, 400 U. S., at 390-394. Moreover, the Attorney General’s longstanding construction of § 5 was reported to Congress by Justice Department officials in connection with the 1975 extension of the Act. See testimony of Assistant Attorney General J. Stanley Pottinger at the Hearings on H. R. 939 et al. before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 94th Cong., 1st Sess., 166 (1975) (1975 House Hearings); exhibits to the testimony of Assistant Attorney General J. Stanley Pottinger at the Hearings on S. 407 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 598-599 (1975) (1975 Senate Hearings). And the legislative history of the 1970 and 1975 re-enactments compellingly supports the conclusion that Congress shared the Attorney General’s view. In 1970, Congress was clearly fully aware of this Court’s interpretation of § 5 as reaching voter changes other than those affecting the registration process and plainly contemplated that the Act would continue to be so construed. See, e. g., Hearings on H. R. 4249 et al. before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., 1, 4, 18, 83, 130-131, 133, 147-149, 15A-155, 182-184, 402-454 (1969); Hearings on S. 818 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong., 1st and 2d Sess., 48, 195-196, 369-370, 397-398, 426-427, 469 (1970). The history further suggests that Congress assumed that, just as § 5 applies to changes that affect aspects of voting other than registration, so it also applies to entities other than those which conduct voter registration. One of the principal factual arguments advanced in favor of the renewal of § 5 was that Anniston, Ala. — which, like Sheffield, has never conducted voter registration — had failed to obtain preclearance of some highly significant voting changes. See Joint View of 10 Members of the Senate Judiciary Committee Relating to the Extension of the Voting Rights Act of 1965, 116 Cong. Rec. 5521 (1970). The congressional history is even clearer with respect to the 1975 extension, which, of course, is the legislation that controls the case at bar. Both the House and Senate Hearings on the bill reflect that the assumption that the coverage of § 5 was unlimited was widely shared and unchallenged. In addition to the aforementioned testimony of the then Assistant Attorney General, which of course has special significance, numerous witnesses expressed this view, either directly or indirectly. See, e. g., 1975 Senate Hearings 75-76 (in covered jurisdictions § 5 requires preclearance of all voting changes, and objections have been entered concerning every stage of the electoral process), 112-114 (describing preclearance of changes in city of Montgomery, Ala.), 463-464 (stating that if Act were applied to Texas, § 5 would require preclearance of voting changes of cities and school districts, neither of which register voters), and 568 (statement by Justice Department official that there is no need to clarify Act to make certain that city council redistricting is covered by § 5); 1975 House Hearings 332 (referring to city of Bessemer, Ala., as “covered jurisdiction”) and 631-632 (describing lengthy § 5 preclearance process for Charleston, S. C. — a city which, like Sheffield, does not conduct voter registration), More significantly, both the House and Senate Committee Reports preclude the conclusion that § 5 was not understood to operate territorially. Not only do the reports state that §5 applies “\i\n [designated] jurisdictions,” see S. Rep. No. 94-295, p. 12 (1975) (1975 Senate Report); H. R. Rep. No. 94-196, p. 5 (1975) (1975 House Report) (emphasis supplied), they also announce that one benefit of the proposed extension of the Act to portions of Texas would be that Texas cities and school districts — neither of which has ever registered voters — would be subject to the preclearance requirement. 1975 Senate Report 27-28; 1975 House Report 19-20. Finally, none of the opponents of the 1975 legislation took issue with the common assumption that § 5 applied to all voting changes within covered States. Indeed, they apparently shared this view. See 121 Cong. Rec. S13072 (July 21, 1975) (remarks of Sen. Stennis) (“[a]ny [voting changes]... made in precincts, county districts, school districts, municipalities, or State legislatures, or any other kind of officers, ha[ve] to be submitted... to the Attorney General”). See also id., at S13331 (July 22, 1975) (remarks of Sen. Allen). Whatever one might think of the other arguments advanced, the legislative background of the 1975 re-enactment is conclusive of the question before us. When a Congress that re-enacts a statute voices its approval of an administrative or other interpretation thereof, Congress is treated as having adopted that interpretation, and this Court is bound thereby. See, e. g., Don E. Williams Co. v. Commissioner, 429 U. S. 569, 576-577 (1977); Albemarle Paper Co. v. Moody, 422 U. S. 405, 414 n. 8 (1975); H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1404 (tent. ed. 1958); cf. Zenith Radio Corp. v. Hazeltine Research, 401 U. S. 321, 336 n. 7 (1971); Girouard v. United States, 328 U. S. 61, 69-70 (1946). Don E. Williams Co. v. Commissioner, supra, is instructive. As here, there had been a longstanding administrative interpretation of a statute when Congress re-enacted it, and there, as here, the legislative history of the re-enactment showed that Congress agreed with that interpretation, leading this Court to conclude that Congress had ratified it. 429 U. S., at 574-577. While we have no quarrel with our Brother Stevens’ view that it is impermissible to draw inferences of approval from the unexplained inaction of Congress, see post, at 149, citing Hodgson v. Lodge 851, Int’l Assn. of Mach. & Aerospace Workers, 454 F. 2d 545, 562 (CA7 1971) (Stevens, J., dissenting), that principle has no applicability to this case. Here, the “slumbering army” of Congress was twice “aroused,” and on each occasion it re-enacted the Voting Rights Act and manifested its view that § 5 covers all cities in designated jurisdictions. In short, the legislative background of the enactment and re-enactments compels the conclusion that, as the purposes of the Act and its terms suggest, § 5 of the Act covers all political units within designated jurisdictions like Alabama. Accordingly, we hold that the District Court erred in concluding that § 5 does not apply to Sheffield. Ill Having decided that Sheffield is subject to § 5, we must consider whether Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Marshall delivered the opinion of the Court. The Secretary of Labor instituted this action under § 402 (b) of the Labor-Management Reporting and Disclosure Act of 1950 (LMRDA), 73 Stat. 534, 29 U. S. C. § 482 (b), to set aside an election of officers of the United Mine Workers of America (UMWA), held on December 9, 1969. He alleged that the election was held in a manner that violated the LMRDA in numerous respects, and he sought an order requiring a new election to be held under his supervision. Petitioner, a member of the UMWA, filed the initial complaint with the Secretary that eventually led him to file this suit. Petitioner now seeks to intervene in the litigation, pursuant to Fed. Rule Civ. Proc. 24 (a), in order (1) to urge two additional grounds for setting aside the election, (2) to seek certain specific safeguards with respect to any new election that may be ordered, and (3) to present evidence and argument in support of the Secretary’s challenge to the election. The District Court denied his motion for leave to intervene, on the ground that the LMRDA expressly stripped union members of any right to challenge a union election in the courts, and gave that right exclusively to the Secretary. Hodgson v. United Mine Workers, 51 F. R. D. 270 (1970). The Court of Appeals affirmed on the basis of the District Court opinion, 77 L. R. R. M. 2496 (CADC 1971). We granted certiorari to determine whether the LMRDA imposes a bar to intervention by union members under Rule 24, in a suit initiated by the Secretary. Post, p. 880. We conclude that it does not, and we remand the case to the District Court with directions to permit intervention. I The LMRDA was the first major attempt of Congress to regulate the internal affairs of labor unions. Having conferred substantial power on labor organizations, Congress began to be concerned about the danger that union leaders would abuse that power, to the detriment of the rank-and-file members. Congress saw the principle of union democracy as one of the most important safeguards against such abuse, and accordingly included in the LMRDA a comprehensive scheme for the regulation of union elections. Title IV of the statute establishes a set of substantive rules governing union elections, LMRDA § 401, 29 U. S. C. § 481, and it provides a comprehensive procedure for enforcing those rules, LMRDA § 402, 29 U. S. C. § 482. Any union member who alleges a violation may initiate the enforcement procedure. He must first exhaust any internal remedies available under the constitution and bylaws of his union. Then he may file a complaint with the Secretary of Labor, who “shall investigate” the complaint. Finally, if the Secretary finds probable cause to believe a violation has occurred, he “shall . . . bring a civil action against the labor organization” in federal district court, to set aside the election if it has already been held, and to direct and supervise a new election. With respect to elections not yet conducted, the statute provides that existing rights and remedies apart from the statute are not affected. But with respect to an election already conducted, “[t]he remedy provided by this subchapter . . . shall be exclusive.” LMRDA §403, 29 U. S. C. §483. The critical statutory provision for present purposes is § 403, 29 U. S. C. § 483, making suit by the Secretary the "exclusive" post-election remedy for a violation of Title IV. This Court has held that § 403 prohibits union members from initiating a private suit to set aside an election. Calhoon v. Harvey, 379 U. S. 134, 140 (1964). But in this case, petitioner seeks only to participate in a pending suit that is plainly authorized by the statute; it cannot be said that his claim is defeated by the bare language of the Act. The Secretary, ;relying on legislative history, argues that § 403 should be construed to bar intervention as well as initiation of a suit by the members. In his view the legislative history shows that Congress deliberately chose to exclude union members entirely from any direct participation in judicial enforcement proceedings under Title IV. The Secretary’s argument rests largely on the fact that two alternative proposals figured significantly in the legislative history of Title IV, and each of these rejected bills would have authorized individual union members to bring suit. In the words of the District Court: “We think the fact that Congress considered two alternatives — suit by union members and suit by the Secretary — and then chose the latter alternative and labelled it ‘exclusive’ deprives this Court of jurisdiction to permit the former alternative via the route of intervention.” 51 F. R. D., at 272. That argument misconceives the legislative history and misconstrues the statute. A review of the legislative ''history shows that Congress made suit by the Secretary the exclusive post-election remedy for two principal reasons: (1) to protect unions from frivolous litigation and unnecessary judicial interference with their elections, and (2) to centralize in a single proceeding such litigation as might be warranted with respect to a single election. Title IV as enacted serves these purposes by referring all complaints to the Secretary so that he can screen out frivolous ones, and by consolidating all meritorious complaints in a single proceeding, the Secretary’s suit in federal district court. The alternative proposals were rejected simply because they failed to accomplish these objectives. There is no evidence whatever that Congress was opposed to participation by union members in the litigation, so long as that participation did not interfere with the screening and centralizing functions of the Secretary. The enforcement provisions of Title IV originated in a bill introduced by Senator John Kennedy in 1958. That bill, S. 3751, provided for suit by the Secretary as the exclusive remedy for violation of the rules relating to union elections. Senator Kennedy described the bill as a "modest proposal,” one which would protect union members “without undue interference in the internal affairs of what I believe are essentially private institutions — that is, American trade unions.” 104 Cong. Rec. 7954. The Senate passed an expanded version of the bill, S. 3974, which retained the original enforcement scheme, and reflected a continuing legislative interest in minimizing judicial interference with union elections. See S. Rep. No. 1684, 85th Cong., 2d Sess., 12-15 (1958). That bill was defeated in the House of Representatives, 104 Cong. Rec. 18288, but essentially the same enforcement scheme was retained the following year in S. 1555, the Kennedy-Ervin bill which was ultimately passed by both Houses and enacted into law. In the Senate, the principal advocate of a provision authorizing individual union members to bring suit was Senator Barry Goldwater. He introduced a bill, S. 748, endorsed by the Administration, that would have authorized both the Secretary and the members to file suit to enforce the rules relating to union elections. During the Senate Hearings, a number of witnesses compared the enforcement provisions of the two bills. The primary objection to the provision for member suits in the Goldwater bill was that it might lead to multiple litigation in multiple forums, and thereby impose on the union the severe burden of mounting multiple defenses. A related objection was that the Goldwater bill failed to interpose a screening mechanism between the dissatisfied union member and the courtroom, and thereby imposed on the union the burden of responding to frivolous complaints. Perhaps the most vehement opposition to the Goldwater bill came from the AFL-CIO. Its spokesman, Andrew Biemiller, testified that "[t]he bill would result in placing union officers in a straitjacket since they could be haled into court, virtually without limitation, to defend union policies or programs in suits brought against them by any dissident union member [or] minority group." Hearings on S. 505 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 86th Cong., 1st Sess., 567 (1959); see also id., at 578-579 (analysis of S. 748 by Arthur J. Goldberg, then special counsel to the AFL-CIO). Multiple litigation and unnecessary harassment, then, were seen as the principal evils of the provision for member suits. And it was precisely those evils that the draftsmen of the Kennedy-Ervin bill sought to avoid. According to Professor Archibald Cox, who was a principal consultant to the draftsmen, the Kennedy proposal made suit by the Secretary the exclusive post-election remedy in order to "centralize control of the proceedings," to adjudicate the validity of an election "once and for all in one forum," and to avoid "unnecessary harassment of the union on one side and . . . friendly suits aimed at foreclosing the Secretary’s action on the other." Id., at 135. Thus, when the Senate Committee reported out the Kennedy-Ervin bill rather than its competitor, it is reasonable to infer that the Committee, and later the Senate, regarded the provision for exclusive enforcement by the Secretary as a device for eliminating frivolous complaints and consolidating meritorious ones. There is no basis whatever for the further conclusion suggested by the Secretary, that the Senate opposed any form of direct participation by union members in Title IV enforcement litigation. The legislative history in the House of Representatives provides even less support for the Secretary’s position. The House initially rejected the Senate bill and passed an alternative authorizing only union members, and not the Secretary, to bring suit to enforce the election title of the bill. H. R. 8342, see H. R. Rep. No. 741, 86th Cong., 1st Sess., 15-17 (1959). Even Senator Goldwater, the leading advocate of member suits, thought the House bill inferior to the Senate bill in this regard, because the matter of election violations was too important to be left exclusively to the vagaries of private enforcement. 105 Cong. Rec. 16489 (comparison of House and Senate bills by Sen. Goldwater). The Conference Committee and the House ultimately adopted the Senate’s enforcement provisions, thereby affirming the need for public enforcement of Title IV. See H. R. Conf. Rep. No. 1147, 86th Cong., 1st Sess., 35 (1959). That action, however, can in no sense be read as a rejection of all forms of private participation in enforcement litigation, since the House at no time considered the possibility that union members might assist the Secretary rather than displace him. With respect to litigation by union members, then, the legislative history supports the conclusion that Congress intended to prevent members from pressing claims not thought meritorious by the Secretary, and from litigating in forums or at times different from those chosen by the Secretary. Only if intervention would frustrate either of those objectives can the statute fairly be read to prohibit intervention as well as initiation of suits by members. II Intervention by union members in a pending enforcement suit, unlike initiation of a separate suit, subjects the union to relatively little additional burden. The principal intrusion on internal union affairs has already been accomplished, in that the union has already been summoned into court to defend the legality of its election. Intervention in the suit by union members will not subject the union to burdensome multiple litigation, nor will it compel the union to respond to a new and potentially groundless suit. Thus, at least insofar as petitioner seeks only to present evidence and argument in support of the Secretary’s complaint, there is nothing in the language or the history of the LMRDA to prevent such intervention. ^ The question is closer with respect to petitioner’s attempt to add to the Secretary’s complaint two additional grounds for setting aside the union election. These are claims that the Secretary has presumably determined to be without merit. Hence, to require the union to respond to these claims would be to circumvent the screening function assigned by statute to the Secretary. We recognize that it is less burdensome for the union to respond to new claims in the context of the pending suit than it would be to respond to a new and independent complaint. Nevertheless, we think Congress intended to insulate the union from any complaint that did not appear meritorious to both a complaining member and the Secretary. Accordingly, we hold that in a post-election enforcement suit, Title IV imposes no bar to intervention by a union member, so long as that intervention is limited to the claims of illegality presentedy by the Secretary’s complaint. III Finally, the Secretary argues that even if the LMRDA does not bar intervention, petitioner has no right to intervene under the terms of Fed. Rule Civ. Proc. 24 (a). Rule 24 (a)(2) gives one a right to intervene if (1) he claims a sufficient interest in the proceedings, and (2) that interest is not “adequately represented by existing parties.” The Secretary does not contend that petitioner’s interest in this litigation is insufficient; he argues, rather, that any interest petitioner has is adequately represented by the Secretary. The court below did not reach this question, in light of its threshold determination that Rule 24 had no application to the case. Nevertheless, we think it clear that in this case there is sufficient doubt about the adequacy of representation to warrant intervention. The Secretary contends that petitioner’s only legally cognizable interest is the interest of all union members in democratic elections, and he says that interest is identical with the interest represented by the Secretary in Title IV litigation. Hence he argues that petitioner’s interest must be adequately represented unless the court is prepared to find that the Secretary has failed to perform his statutory duty. We disagree. The statute plainly imposes on the Secretary the duty to serve two distinct interests, which are related, but not identical. First, the statute gives the individual union members certain rights against their union, and "the Secretary of Labor in effect becomes the union member’s lawyer" for purposes of enforcing those rights. 104 Cong. Rec. 10947 (remarks of Sen. Kennedy). And second, the Secretary has an obligation to protect the "vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member." Wirtz v. Local 153, Glass Bottle Blowers Assn., 389 U. S. 463, 475 (1968). Both functions are important, and they may not always dictate precisely the same approach to the conduct of the litigation. Even if the Secretary is performing his duties, broadly conceived, as well as can be expected, the union member may have a valid complaint about the performance of "his lawyer." Such a complaint, filed by the member who initiated the entire enforcement proceeding, should be regarded as sufficient to warrant relief in the form of intervention under Rule 24 (a) (2). The judgment is reversed and the case is remanded to the District Court with directions to allow limited intervention in accordance with this opinion. So ordered Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case. The complaint alleged that the Union violated the Act by, inter alia, failing to use secret ballots, permitting campaigning at the polls, denying candidates the right to have observers at polling places and at the counting of ballots, subjecting members to reprisals in connection with their election activities, failing to conduct elections in some locals, and using union assets to promote the candidacy of the incumbents. Petitioner alleged as additional violations of the Act (1) that the Union required members to vote in certain locals, composed entirely of pensioners, which petitioner claims are illegally constituted under the UMWA Constitution; and (2) that the incumbent president improperly influenced the pensioners’ vote by bringing about a pension increase just before the election. Petitioner asks the court to order the Union to disband the pensioner locals, to publish a ruling to the effect that the president breached his fiduciary duty by bringing about the pension increase, and to establish new comprehensive rules to govern future elections. We expedited consideration of this case in view of the fact that the litigation is presently pending in the District Court and it has not been stayed. See generally Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv. L. Rev. 851 (1960); Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich. L. Rev. 819 (1960). The Goldwater-Administration bill provided that a member could file suit with respect to any violation of the election title unless that claimed violation was the subject of a pending action by the Secretary. It also provided that enforcement suits could be filed in either state or federal courts. The question of member suits was, throughout the debates, intertwined with the question of preserving pre-existing state remedies, since prior to the enactment of the LMRDA the only remedy for illegal election conduct was a member suit in state court. Pre-existing state remedies presented the additional problem, not relevant here, of multiple litigation that was not only inconvenient as a matter of procedure but also in conflict as a matter of substance, for the state remedies related to state-defined rights that were not always identical to the new rights defined in the LMRDA. The debates reflect great concern with the proper relationship between state and federal remedies, and much less concern with the relationship between private and public enforcement. See, e. g., S. Rep. No. 187, 86th Cong., 1st Sess., 19-22, 101-104 (1959) (majority and minority views); Hearings on H. R. 3540 et al. before a Joint Subcommittee of the House Committee on Education and Labor, 86th Cong., 1st Sess., pt. 4, p. 1611 (1959) (analysis of S. 1555 by Sen. Goldwater), reprinted at 105 Cong. Rec. 10102. For the origins and development of the procedural device of intervention, see Moore & Levi, Federal Intervention, 45 Yale L. J. 565 (1936), 47 Yale L. J. 898 (1938); Developments in the Law— Multi-party Litigation in the Federal Courts, 71 Harv. L. Rev. 874, 897-906, 988-992 (1958). The distinction between intervention and initiation is thoughtfully discussed in Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv. L. Rev. 721, 726-729 (1968). This limitation, however, applies only to the claimed grounds for setting aside the old election, and not to the proposed terms of any new one that may be ordered. For if the court finds merit in the Secretary’s complaint and sets the election aside, then the statute requires the court to direct a new election in conformity with the constitution and bylaws of the union, and the requirements of Title IV. Since the court is not limited in this regard to consideration of remedies proposed by the Secretary, there is no reason to prevent the intervenors from assisting the court in fashioning a suitable remedial order. Cf. Hodgson v. Steelworkers, 403 U. S. 333, 344 (White, J., dissenting). Fed. Rule Civ. Proc. 24 (a): “Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” The requirement of the Rule is satisfied if the applicant shows that representation of his interest “may be” inadequate; and the burden of making that showing should be treated as minimal. See 3B J. Moore, Federal Practice ¶ 24.09-1 [4] (1969). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

G

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Brennan delivered the opinion of the Court. Under § 8 (b)(4)(ii)(B) of the National Labor Relations Act, as amended, it is an unfair labor practice for a union “to threaten, coerce, or restrain any person,” with the object of “forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer ... or to cease doing business with any other person . . . .” A proviso excepts, however, “publicity, other than picketing, for the purpose of truthfully advising the public . . . that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution.” (Italics supplied.) The question in this case is whether the respondent unions violated this section when they limited their secondary picketing of retail stores to an appeal to the customers of the stores not to buy the products of certain firms against which one of the respondents was on strike. Respondent Local 760 called a strike against fruit packers and warehousemen doing business in Yakima, Washington. The struck firms sold Washington State apples to the Safeway chain of retail stores in and about Seattle, Washington. Local 760,' aided by respondent Joint Council, instituted a consumer boycott against the apples in support of the strike. They placed pickets who walked back and forth before the customers’ entrances of 46 Safeway stores in Seattle. The pickets — two at each of 45 stores and three at the 46th store — wore placards and distributed handbills which appealed to Safeway customers, and to the public generally, to refrain from buying Washington State apples, which were only one of numerous food products sold in the stores. Before the pickets appeared at any store, a letter was delivered to the store manager informing him that the picketing was only an appeal to his customers not to buy Washington State apples, and that the pickets were being expressly instructed “to patrol peacefully in front of the consumer entrances of the store, to stay away from the delivery entrances and not to interfere with the work of your employees, or with deliveries to or pickups from your store.” A copy of written instructions to the pickets— which included the explicit statement that “you are also forbidden to request that the customers not patronize the store” — was enclosed with the letter. Since it was desired to assure Safeway employees that they were not to cease work, and to avoid any interference with pickups or deliveries, the pickets appeared after the stores opened for business and departed before the stores closed. At all times during the picketing, the store employees continued to work, and no deliveries or pickups were obstructed. Washington State apples were handled in normal course by both Safeway employees and the employees of other employers involved. Ingress and egress by customers and others was not interfered with in any manner. A complaint issued on charges that this conduct violated § 8 (b) (4) as amended. The case was submitted directly to the National Labor Relations Board on a stipulation of facts and the waiver of a hearing and proceedings before a Trial Examiner. The Board held, following its construction of the statute in Upholsterers Frame & Bedding Workers Twin City Local No. 61,132 N. L. R. B. 40, that “by literal wording of the proviso [to Section 8 (b) (4)] as well as through the interpretive gloss placed thereon by its drafters, consumer picketing in front of a secondary establishment is prohibited.” 132 N. L. R. B. 1172, 1177. Upon respondents’ petition for review and the Board’s cross-petition for enforcement, the Court of Appeals for the District of Columbia Circuit set aside the Board’s order and remanded. The court rejected the Board’s construction and held that the statutory requirement of a showing that respondents’ conduct would “threaten, coerce, or restrain” Safeway could only be satisfied by affirmative proof that a substantial economic impact on Safeway had occurred, or was likely to occur as a result of the conduct. Under the remand the Board was left “free to reopen the record to receive evidence upon the issue whether Safeway was in fact threatened, coerced, or restrained.” 113 U. S. App. D. C. 356, 363, 308 F. 2d 311, 318. We granted certiorari, 374 U. S. 804. The Board’s reading of the statute — that the legislative history and the phrase “other than picketing” in the proviso reveal a congressional purpose to outlaw all picketing directed at customers at a secondary site — necessarily rested on the finding that Congress determined that such picketing always threatens, coerces or restrains the secondary employer. We therefore have a special responsibility to examine the legislative history for confirmation that Congress made that determination. Throughout the history of federal regulation of labor relations, Congress has consistently refused to prohibit peaceful picketing except where it is used as a means to achieve specific ends which experience has shown are undesirable. “In the sensitive area of peaceful picketing Congress has dealt explicitly with isolated evils which experience has established flow from such picketing.” Labor Board v. Drivers Local Union, 362 U. S. 274, 284. We have recognized this congressional practice and have not ascribed to Congress a purpose to outlaw peaceful picketing unless “there is the clearest indication in the legislative history,” ibid., that Congress intended to do so as regards the particular ends of the picketing under review. Both the congressional policy and our adherence to this principle of interpretation reflect concern that a broad ban against peaceful picketing might collide with the guarantees of the First Amendment. We have examined the legislative history of the amendments to § 8 (b)(4), and conclude that it does not reflect with the requisite clarity a congressional plan to proscribe all peaceful consumer picketing at secondary sites, and, particularly, any concern with peaceful picketing when it is limited, as here, to persuading Safeway customers not to buy Washington State apples when they traded in the Safeway stores. All that the legislative history shows in the way of an “isolated evil” believed to require proscription of peaceful consumer picketing at secondary sites, was its use to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer. .This narrow focus reflects the difference between such conduct and peaceful picketing at the secondary site directed only at the struck product. In the latter case, the union’s appeal to the public is confined to its dispute with the primary employer, since the public is not asked to withhold its patronage from the secondary employer, but only to boycott the primary employer’s goods. On the other hand, a union appeal to the public at the secondary site not to trade at all with the secondary employer goes beyond the goods of the primary employer, and seeks the public’s assistance in forcing the secondary employer to cooperate with the union in its primary dispute. This is not to say that this distinction was expressly alluded to in the debates. It is to say, however, that the consumer picketing carried on in this case is not attended by the abuses at which the statute was directed. The story of the 1959 amendments, which we have detailed at greater length in our opinion filed today in Labor Board v. Servette, Inc., ante, p. 46, begins with the original § 8 (b)(4) of the National Labor Relations Act. Its prohibition, in pertinent part, was confined to the inducing or encouraging of “the employees of any employer to engage in, a strike or a concerted refusal . . . to . . . handle . . . any goods . . .” of a primary employer. This proved to be inept language. Three major loopholes were revealed. Since only inducement of “employees” was proscribed, direct inducement of a supervisor or the secondary employer by threats of labor trouble was not prohibited. Since only a “strike or a concerted refusal” was prohibited, pressure upon a single employee was not forbidden. Finally, railroads, airlines and municipalities were not “employers” under the Act and therefore inducement or encouragement of their employees was not unlawful. When major labor relations legislation was being considered in 1958, the closing of these loopholes was important to the House and to some members of the Senate. But the prevailing Senate sentiment favored new legislation primarily concerned with the redress of other abuses, and neither the Kennedy-Ives bill, which failed of passage in the House in the Eighty-fifth Congress, nor the Kennedy-Ervin bill, adopted by the Senate in the Eighty-sixth Congress, included any revision of § 8(b) (4). Proposed amendments of § 8 (b)(4) offered by several Senators to fill the three loopholes were rejected. The Administration introduced such a bill, and it was supported by Senators Dirksen and Goldwater. Senator Goldwater, an insistent proponent of stiff boycott curbs, also proposed his own amendments. We think it is especially significant that neither Senator, nor the Secretary of Labor in testifying in support of the Administration’s bill, referred to consumer picketing as making the amendments necessary. Senator McClellan, who also offered a bill to curb boycotts, mentioned consumer picketing but only such as was “pressure in the form of dissuading customers from dealing with secondary employers.” (Emphasis supplied.) It was the opponents of the amendments who, in expressing fear of their sweep, suggested that they might proscribe consumer picketing. Senator Humphrey first sounded the warning early in April. Many months later, when the Conference bill was before the Senate, Senator Morse, a conferee, would not support the Conference bill on the express ground that it prohibited consumer picketing. But we have often cautioned against the danger, when interpreting a statute, of reliance upon the views of its legislative opponents. In their zeal to defeat a bill, they understandably tend to overstate its reach. “The fears and doubts of the opposition are no authoritative guide to the construction of legislation. It is the sponsors that we look to when the meaning of the statutory words is in doubt.” Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 394-395; see also Mastro Plastics Corp. v. Labor Board, 350 U. S. 270, 288; United States v. Calamaro, 354 U. S. 351, n. 9, at 358. The silence of the sponsors of amendments is pregnant with significance since they must have been aware that consumer picketing as such had been held to be outside the reach of § 8 (b)(4). We are faithful to our practice of respecting the congressional policy of legislating only against clearly identified abuses of peaceful picketing when we conclude that the Senate neither specified the kind of picketing here involved as an abuse, nor indicated any intention of banning all consumer picketing. The House history is similarly beclouded, but what appears confirms our conclusion. From the outset the House legislation included provisions concerning secondary boycotts. The Landrum-Griffin bill, which was ultimately passed by the House, embodied the Eisenhower Administration’s proposals as to secondary boycotts. The initial statement of Congressman Griffin in introducing the bill which bears his name, contains no reference to consumer picketing in the list of abuses which he thought required the secondary boycott amendments. Later in the House debates he did discuss consumer picketing, but only in the context of its abuse when directed against shutting off the patronage of a secondary employer. In the debates before passage of the House bill he stated that the amendments applied to consumer picketing of customer entrances to retail stores selling goods manufactured by a concern under strike, if the picketing were designed to “coerce or to restrain the employer of [the] second establishment, to get him not to do business with the manufacturer . . . ,” and further that, “of course, this bill and any other bill is limited by the constitutional right of free speech. If the purpose of the picketing is to coerce the retailer not to do business with the manufacturer” — then such a boycott could be stopped. (Italics supplied.) The relevant changes in former § 8 (b)(4) made by the House bill substituted “any individual employed by any person” for the Taft-Hartley wording, “the employees of any employer,” deleted the requirement of a “concerted” refusal, and made it an unfair labor practice “to threaten, coerce, or restrain any person” where an object thereof was an end forbidden by the statute, e. g., forcing or requiring a secondary employer to cease handling the products of, or doing business with, a primary employer. There is thus nothing in the legislative history prior to the convening of the Conference Committee which shows any congressional concern with consumer picketing beyond that with the “isolated evil” of its use to cut off the business of a secondary employer as a means of forcing him to stop doing business with the primary employer. When Congress meant to bar picketing per se, it made its meaning clear; for example, § 8 (b)(7) makes it an unfair labor practice, “to picket or cause to be picketed . . . any employer . . . .” In contrast, the prohibition of § 8 (b) (4) is keyed to the coercive nature of the conduct, whether it be picketing or otherwise. Senator Kennedy presided over the Conference Committee. He and Congressman Thompson prepared a joint analysis of the Senate and House bills. This analysis pointed up the First Amendment implications of the broad language in the House revisions of § 8 (b) (4) stating, “The prohibition [of the House bill] reaches not only picketing but leaflets, radio broadcasts and newspaper advertisements, thereby interfering with freedom of speech. “. . . one of the apparent purposes of the amendment is to prevent unions from appealing to the general public as consumers for assistance in a labor dispute. This is a basic infringement upon freedom of expression.” This analysis was the first step in the development of the publicity proviso, but nothing in the legislative history of the proviso alters our conclusion that Congress did not clearly express an intention that amended § 8 (b)(4) should prohibit all consumer picketing. Because of the sweeping language of the House bill, and its implications for freedom of speech, the Senate conferees refused to accede to the House proposal without safeguards for the right of unions to appeal to the public, even by some conduct which might be “coercive.” The result was the addition of the proviso. But it does not follow from the fact that some coercive conduct was protected by the proviso, that the exception “other than picketing” indicates that Congress had determined that all consumer picketing was coercive. No Conference Report was before the Senate when it passed the compromise bill, and it had the benefit only of Senator Kennedy’s statement of the purpose of the proviso. ' He said that the proviso preserved “the right to appeal to consumers by methods other than picketing asking them to refrain from buying goods made by nonunion labor and to refrain from trading with a retailer who sells such goods. . . . We were not able to persuade the House conferees to permit picketing in front of that secondary shop, but were able to persuade them to agree that the union shall be free to conduct informational activity short of picketing. In other words, the union can hand out handbills at the shop . . . and can carry on all publicity short of having ambulatory picketing . . . .” (Italics supplied.) This explanation does not compel the conclusion that the Conference Agreement contemplated prohibiting any consumer picketing at a secondary site beyond that which urges the public, in Senator Kennedy’s words, to “refrain from trading with a retailer who sells such goods.” To read into the Conference Agreement, on the basis of a single statement, an intention to prohibit all consumer picketing at a secondary site would depart from our practice of respecting the congressional policy not to' prohibit peaceful picketing except to curb “isolated evils” spelled out by the Congress itself. Peaceful consumer picketing to shut off all trade with the secondary employer unless he aids the union in its dispute with the primary employer, is poles apart from such picketing which only persuades his customers not to buy the struck product. The proviso indicates no more than that the Senate conferees’ constitutional doubts led Congress to authorize publicity other than picketing which persuades the customers of a secondary employer to stop all trading with him, but not such publicity which has the effect of cutting off his deliveries or inducing his employees to cease work. On the other hand, picketing which persuades the customers of a secondary employer to stop all trading with him was also to be barred. In sum, the legislative history does not support the Board’s finding that Congress meant to prohibit all consumer picketing at a secondary site, having determined that such picketing necessarily threatened, coerced or restrained the secondary employer. Rather, the history shows that Congress was following its usual practice of legislating against peaceful picketing only to curb “isolated evils.” This distinction is opposed as “unrealistic” because, it is urged, all picketing automatically provokes the public to stay away from the picketed establishment. The public will, it is said, neither read the signs and handbills, nor note the explicit injunction that “This is not a strike against any store or market.” Be that as it may, our holding today simply takes note of the fact that Congress has never adopted a broad condemnation ' of peaceful picketing, such as that urged upon us by petitioners, and an intention to do so is not revealed with that “clearest indication in the legislative history,” which we require. Labor Board v. Drivers Local Union, supra. We come then to the question whether the picketing in this case, confined as it was to persuading customers to cease buying the product of the primary employer, falls within the area of secondary consumer picketing which Congress did clearly indicate its intention to prohibit under § 8 (b) (4) (ii). We hold that it did not fall within that area, and therefore did not “threaten, coerce, or restrain” Safeway. While any diminution in Safeway’s purchases of apples due to a drop in consumer demand might be said to be a result which causes respondents’ picketing to fall literally within the statutory prohibition, “it is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Holy Trinity Church v. United States, 143 U. S. 457, 459. See United States v. American Trucking Assns., 310 U. S. 534, 543-544. When consumer picketing is employed only to persuade customers not to buy the struck product, the union’s appeal is closely confined to the primary dispute. The site of the appeal is expanded to include the premises of the secondary employer, but if the appeal succeeds, the secondary employer’s purchases from the struck firms are decreased only because the public has diminished its purchases of the struck product. On the other hand, when consumer picketing is employed to persuade customers not to trade at all with the secondary employer, the latter stops buying the struck product, not because of a falling demand, but in response to pressure designed to inflict injury on his business generally. In such case, the union does more than merely follow the struck product; it creates a separate dispute with the secondary employer. We disagree therefore with the Court of Appeals that the test of “to threaten, coerce, or restrain” for the purposes of this case is whether Safeway suffered or was likely to suffer economic loss. A violation of § 8 (b) (4) (ii)(B) would not be established, merely because respondents’ picketing was effective to reduce Safeway’s sales of Washington State apples, even if this led or might lead Safeway to drop the item as a poor seller. The judgment of the Court of Appeals is vacated and the case is remanded with direction to enter judgment setting aside the Board’s order. It is so ordered. Mr. Justice Douglas took no part in the consideration or decision of this case. APPENDIX TO OPINION OF THE COURT. “Notice to Storage [sic] Manager and Store Employees. “We are advised that you are presently engaged in selling Washington State Apples. “The 1960 crop of Washington State Apples is being packed by non-union firms, including 26 firms in the Yakima Valley. Prior to this year, the 26 Yakima Valley firms had been parties to a collective bargaining contract with Teamsters Union Local 760 of Yakima, Washington, but this year, when a new contract was being negotiated, the employers took the position that many of the basic provisions of the prior contract, such as seniority, overtime, protection against unjust discharge, grievance procedure and union security, should be weakened or eliminated entirely. These extreme demands plus a refusal to bargain in good faith led to a strike against the employer. The union made all possible efforts to avoid this strike as did outside agencies who were assisting in the negotiations. Even the Governor of the State of Washington, the Honorable Albert D. Rosellini, intervened and suggested that the parties agree to a fact finding committee or arbitration. The union agreed to these proposals but the employers declined. “The employer’s refusal to bargain in good faith has caused the Seattle office of the National Labor Relations Board to prepare a complaint against the employers, charging them with unfair labor practices in violation of federal law. “The strike at Yakima is still continuing and in order to win this strike, we must ask the consuming public not to purchase Washington State Apples. “Therefore, we are going to place peaceful pickets at the entrances to your store for the purpose of trying to persuade the public not to buy Washington Apples. These pickets are being instructed to patrol peacefully in front of the consumer entrances of the store, to stay away from the delivery entrances and not to interfere with the work of your employees, or with deliveries to or pickups from your store. A copy of the instructions which have been furnished to the pickets is attached herewith. “We do not intend that any of your employees cease work as a result of the picketing. We ask that you advise your employees of our intentions in this respect, perhaps by posting this notice on your store bulletin board. “If any of your employees should stop work as a result of our program, or if you should have any difficulties as far as pickups and deliveries are concerned, or if you observe any of the pickets disobeying the instructions which they have been given, please notify the undersigned union representative at once and we will take steps to see that the situation is promptly corrected. “As noted above, our information indicates that you are presently selling Washington State Apples. If, however, this information is not correct and you are selling apples exclusively from another state, please notify the undersigned and we will see that the pickets are transferred to another store where Washington State Apples are actually being sold. “Thank you for your cooperation.” The instructions to pickets read as follows; “Instructions to Pickets. “Dear Picket: “You are being asked to help publicize a nationwide consumer boycott aimed at non-union Washington State Apples. To make this program a success your cooperation is essential. Please read these instructions and follow them carefully. “1. At all times you are to engage in peaceful picketing. You are forbidden to engage in any altercation, argument, or misconduct of any kind. “2. You are to walk back and forth on the sidewalk in front of the consumer entrances to the grocery stores. If a particular store is located toward the rear of a parking lot, you are to ask the store manager for permission to walk back and forth on the apron or sidewalk immediately in front of the store; but if he denies you this permission, you are to picket only on the public sidewalk at the entrances to the parking lot. As far as large shipping centers are concerned, you will be given special instruction for picketing in such locations. “3. You are not to picket in front of or in the area of any entrance to the store which is apparently set aside for the use of store employees and delivery men. As noted above, you are to limit your picketing to the consumer entrances to the store. “4. This union has no dispute with the grocery stores, and you are forbidden to make any statement to the effect that the store is unfair or on strike. You are also forbidden to request that the customers not patronize the store. We are only asking that the customers not buy Washington State apples, when they are shopping at the store. “5. Similarly, you are not to interfere with the work of any employees in the store. If you are asked by these employees what the picketing is about, you are to tell them it is an advertising or consumer picket and that they should keep working. Likewise if you are asked by any truck drivers who are making pickups or deliveries what the picket is about, you are to advise that it is an advertising or consumer picket and that it is not intended to interfere with pickups or deliveries (i. e. that they are free to go through). “6. If you are given handbills to distribute, please distribute these handbills in a courteous manner and if the customers throw them on the ground, please see that they are picked up at once and that the area is kept clean. “7. You are forbidden to use intoxicating beverages while on duty or to have such beverages on your person. “8. If a state official or any other private party should complain to you about the picketing, advise them you have your instructions and that their complaints should be registered with the undersigned union representative. “9. These instructions should answer most of your questions concerning this program. However, if you have any additional questions or if specific problems arise which require additional instructions, please call the undersigned.” As amended by the Labor-Management Reporting and Disclosure Act of 1959 (Landrum-Griffin Act) §704 (a), 73 Stat. 542-543, 29 U. S. C. (Supp. IV, 1963) § 158 (b) (4). The firms, 24 in number, are members of the Tree Fruits Labor Relations Committee, Inc., which acts as the members’ agent in labor disputes and in collective bargaining with unions which represent employees of the members. The strike was called in a dispute over the terms of the renewal of a collective bargaining agreement. The placard worn by each picket stated: “To the Consumer: Non-Union Washington State apples are being sold at this store. Please do not purchase such apples. Thank you. Teamsters Local 760, Yakima, Washington.” A typical handbill read: “DON’T BUY WASHINGTON STATE APPLES THE 1960 CROP OP WASHINGTON STATE APPLES IS BEING PACKED BY NON-UNION FIRMS Included in this non-union operation are twenty-six firms in the Yakima Valley with which there is a labor dispute. These firms are charged with being UNFAIR by their employees who, with their union, are on strike and have been replaced by non-union strikebreaking workers employed under substandard wage scales and working conditions. In justice to these striking union workers who are attempting to protect their living standards and their right to engage in good-faith collective bargaining, we request that you DON’T BUY WASHINGTON STATE APPLES Teamsters Union Local 760 Yakima, Washington This is not a strike against any store or market. (P.S. — PACIFIC FRUIT & PRODUCE CO. is the only firm packing Washington State Apples under a union contract.)” Copies of the letter delivered to each store manager and of the instructions to pickets are printed in the Appendix. The complaint charged violations of both subsections (i) and (ii) of § 8 (b) (4). The Board held, however, that as the evidence indicated “that Respondents’ picketing was directed at consumers only, and was not intended to 'induce or encourage’ employees of Safeway or of its suppliers to engage in any kind of action, we find that by such picketing Respondents did not violate Section 8 (b) (4) (i) (B) of the Act.” 132 N. L. R. B., at 1177. See also Labor Board v. Servette, Inc., ante, p. 46, decided today. Accord: Burr & Perfection Mattress Co. v. Labor Board, 321 F. 2d 612 (C. A. 5th Cir.). The distinction between picketing a secondary employer merely to “follow the struck goods,” and picketing designed to result in a generalized loss of patronage, was well established in the state cases by 1940. The distinction was sometimes justified on the ground that the secondary employer, who was presumed to receive a competitive benefit from the primary employer’s nonunion, and hence lower, wage scales, was in “unity of interest” with the primary employer, Goldfinger v. Feintuch, 276 N. Y. 281, 286, 11 N. E. 2d 910, 913; Newark Ladder & Bracket Sales Co. v. Furniture Workers Local 66, 125 N. J. Eq. 99, 4 A. 2d 49; Johnson v. Milk Drivers & Dairy Employees Union, Local 854, 195 So. 791 (Ct. App. La.), and sometimes on the ground that picketing restricted to the primary employer’s product is “a primary boycott against the merchandise.” Chiate v. United Cannery Agricultural Packing & Allied Workers of America, 2 CCH Lab. Cas. 125, 126 (Cal. Super. Ct.). See I Teller, Labor Disputes and Collective Bargaining § 123 (1940). S. 748, 105 Cong. Rec. 1259-1293, II Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, 975, 987. 105 Cong. Rec. 6190, II Leg. Hist. 1034. 105 Cong. Rec. 1283, 6428, II Leg. Hist. 979, 1079 (Senator Goldwater); 105 Cong. Rec. 1729-1730, II Leg. Hist. 993-994 (remarks of the Secretary of Labor, inserted in the record by Senator Dirksen). It is true that Senator Goldwater referred to consumer picketing when the Conference bill was before the Senate. His full statement reads as follows: “the House bill . . . closed up every loophole in the boycott section of the law including the use of a secondary consumer picket line, an example of which the President gave on his nationwide TV program on August 6. . . .” 105 Cong. Rec. 17904, II Leg. Hist. 1437. The example given by the President was this: “The employees [of a furniture manufacturer] vote against joining a particular union. Instead of picketing the furniture plant itself, unscrupulous organizing officials . . . picket the stores which sell the furniture .... How can anyone justify this kind of pressure against stores which are not involved in any dispute? . . . This kind of action is designed to make the stores bring pressure on the furniture plant and its employees ...” 105 Cong. Rec. 19954, II Leg. Hist. 1842. Senator Goldwater’s own definition of what he meant by a secondary consumer boycott is even more clearly narrow in scope: “A secondary consumer, or customer, boycott involves the refusal of consumers or customers to buy the products or services of one employer in order to force him to stop doing business with another employer.” 105 Cong. Rec. 17674, II Leg. Hist. 1386. 105 Cong. Rec. 6667, II Leg. Hist. 1194. 105 Cong. Rec. 6232, II Leg. Hist. 1037. 105 Cong. Rec. 17882-17883, II Leg. Hist. 1426, United, Wholesale & Warehouse Employees, Local 261, v. Labor Board, 108 U. S. App. D. C. 341, 282 F. 2d 824; Labor Board v. International Union of Brewery Workers, 272 F. 2d 817, 819 (C. A. 10th Cir.); Labor Board v. Business Machine & Office Appliance Mechanics Conference Board, 228 F. 2d 553, 559-561 (C. A. 2d Cir.), cert. denied, 351 U. S. 962. The Landrum-Griffin bill, H. R. 8400, was substituted on the floor of the House for the bill reported by the House Committee on Education and Labor, H. R. 8342; the language of the two bills with respect to secondary boycotts is compared at II Leg. Hist. 1912. 105 Cong. Ree. 15531-15532, II Leg. Hist. 1568. 105 Cong. Rec. 15673, II Leg. Hist. 1615. The same concern with direct coercion of secondary employers appears in President Eisenhower’s message accompanying the Administration bill. S. Doc. No. 10, 86th Cong., 1st Sess., I Leg. Hist. 81-82. See also minority report of the Senate Committee on the Kennedy-Ervin bill. S. Rep. No. 187, 86th Cong., 1st Sess., I Leg. Hist. 474-475. 105 Cong. Ree. 16591, II Leg. Hist. 1708. 105 Cong. Rec. 17898-17899, II Leg. Hist. 1432. For example: If a public appeal directed only at a product results in a decline of 25% in the secondary employer’s sales of that product, the corresponding reduction of his purchases of the product is due to his inability to sell any more. But if the appeal is broadened to ask that the public cease all patronage, and if there is a 25% response, the secondary employer faces this decision: whether to discontinue handling the primary product entirely, even though he might otherwise have continued to sell it at the 75% level, in order to prevent the loss of sales of other products. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

G

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Marshall delivered the opinion of the Court. Appellants are an exhibitor and the distributor of a motion picture named “Viva Maria,” which, pursuant to a city ordinance, the Motion Picture Classification Board of the appellee City of Dallas classified as “not suitable for young persons.” A county court upheld the Board’s determination and enjoined exhibition of the film without acceptance by appellants of the requirements imposed by the restricted classification. The Texas Court of Civil Appeals affirmed, and we noted probable jurisdiction, 387 TJ. S. 903, to consider the First and Fourteenth Amendment issues raised by appellants with respect to appellee’s classification ordinance. That ordinance, adopted in 1965, may be summarized as follows. It establishes a Motion Picture Classification Board, composed of nine appointed members, all of whom serve without pay. The Board classifies films as “suitable for young persons” or as “not suitable for young persons,” young persons being defined as children who have not reached their 16th birthday. An exhibitor must be specially licensed to show “not suitable” films. The ordinance requires the exhibitor, before any initial showing of a film, to file with the Board a proposed classification of the film together with a summary of its plot and similar information. The proposed classification is approved if the Board affirmatively agrees with it, or takes no action upon it within five days of its fifing. If a majority of the Board is dissatisfied with the proposed classification, the exhibitor is required to project the film before at least five members of the Board at the earliest practicable time. At the showing, the exhibitor may also present testimony or other support for his proposed classification. Within two days the Board must issue its classification order. Should the exhibitor disagree, he must file within two days a notice of nonacceptance. The Board is then required to go to court within three days to seek a temporary injunction, and a hearing is required to be set on that application within five days thereafter; if the exhibitor agrees to waive notice and requests a hearing on the merits of a permanent injunction, the Board is required to waive its application for a temporary injunction and join in the exhibitor’s request. If an injunction does not issue within 10 days of the exhibitor’s notice of nonacceptance, the Board’s classification order is suspended. The ordinance does not define the scope of judicial review of the Board’s determination, but the Court of Civil Appeals held that de novo review in the trial court was required. If an injunction issues and the exhibitor seeks appellate review, or if an injunction is refused and the Board appeals, the Board must waive all statutory notices and times, and join a request of the exhibitor, to advance the case on the appellate court’s docket, i. e., do everything it can to assure a speedy determination. The ordinance is enforced primarily by a misdemeanor penalty: an exhibitor is subject to a fine of up to $200 if he exhibits a film that is classified “not suitable for young persons” without advertisements clearly stating its classification or without the classification being clearly posted, exhibits on the same program a suitable and a not suitable film, knowingly admits a youth under age 16 to view the film without his guardian or spouse accompanying him, makes any false or willfully misleading statement in submitting a film for classification, or exhibits a not suitable film without having a valid license therefor. The same penalty is applicable to a youth who obtains admission to a not suitable film by falsely giving his age as 16 years or over, and to any person who sells or gives to a youth under 16 a ticket to a not suitable film, or makes any false statements to enable such a youth to gain admission. Other means of enforcement, as against the exhibitor, are provided. Repeated violations of the ordinance, or persistent failure “to use reasonable diligence to determine whether those seeking admittance to the exhibition of a film classified 'not suitable for young persons’ are below the age of sixteen,” may be the basis for revocation of a license to show not suitable films. Such a persistent failure, or exhibition of a not suitable film by an exhibitor with three convictions under the ordinance, inter alia, are defined as “public nuisances,” which the Board may seek to restrain by a suit for injunctive relief. The substantive standards governing classification are as follows: “ 'Not suitable for young persons’ means: “(1) Describing or portraying brutality, criminal violence or depravity in such a manner as to be, in the judgment of the Board, likely to incite or encourage crime or delinquency on the part of young persons; or “(2) Describing or portraying nudity beyond the customary limits of candor in the community, or sexual promiscuity or extra-marital or abnormal sexual relations in such a manner as to be, in the judgment of the Board, likely to incite or encourage delinquency or sexual promiscuity on the part of young persons or to appeal to their prurient interest. “A film shall be considered 'likely to incite or encourage’ crime delinquency or sexual promiscuity on the part of young persons, if, in the judgment of the Board, there is a substantial probability that it will create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted. A film shall be considered as appealing to ‘prurient interest’ of young persons, if in the judgment of the Board, its calculated or dominant effect on young persons is substantially to arouse sexual desire. In determining whether a film is ‘not suitable for young persons,’ the Board shall consider the film as a whole, rather than isolated portions, and shall determine whether its harmful effects outweigh artistic or educational values such film may have for young persons.” Appellants attack those standards as unconstitutionally-vague. We agree. Motion pictures are, of course, protected by the First Amendment, Joseph Burstyn, Inc. v. Wilson, 343 U. S. 496 (1952), and thus we start with the premise that “[precision of regulation must be the touchstone,” NAACP v. Button, 371 U. S. 415, 438 (1963). And while it is true that this Court refused to strike down, against a broad and generalized attack, a prior restraint requirement that motion pictures be submitted to censors in advance of exhibition, Times Film Corp. v. City of Chicago, 365 U. S. 43 (1961), there has been no retreat in this area from rigorous insistence upon procedural safeguards and judicial superintendence of the censor’s action. See Freedman v. Maryland, 380 U. S. 51 (1965). In Winters v. New York, 333 U. S. 507 (1948), this Court struck down as vague and indefinite a statutory standard interpreted by the state court to be “criminal news or stories of deeds of bloodshed or lust, so massed as to become vehicles for inciting violent and depraved crimes....” Id., at 518. In Joseph Burstyn, Inc. v. Wilson,, supra, the Court dealt with a film licensing standard of “sacrilegious,” which was found to have such an all-inclusive definition as to result in “substantially unbridled censorship.” 343 U. S., at 502. Following Burstyn, the Court held the following film licensing standards to be unconstitutionally vague: “of such character as to be prejudicial to the best interests of the people of said City,” Gelling v. Texas, 343 U. S. 960 (1952); “moral, educational or amusing and harmless,” Superior Films, Inc. v. Department of Education, 346 U. S. 587 (1954); “immoral,” and “tend to corrupt morals,” Commercial Pictures Corp. v. Regents, 346 U. S. 587 (1954); “approve such films... [as] are moral and proper;... disapprove such as are cruel, obscene, indecent or immoral, or such as tend to debase or corrupt morals,” Holmby Productions, Inc. v. Vaughn, 350 U. S. 870 (1955). See also Kingsley Int’l Pictures Corp. v. Regents, 360 U. S. 684, 699-702 (Clark, J., concurring in result). The vice of vagueness is particularly pronounced where expression is sought to be subjected to licensing. It may be unlikely that what Dallas does in respect to the licensing of motion pictures would have a significant effect upon film makers in Hollywood or Europe. But what Dallas may constitutionally do, so may other cities and States. Indeed, we are told that this ordinance is being used as a model for legislation in other localities. Thus, one who wishes to convey his ideas through that medium, which of course includes one who is interested not so much in expression as in making money, must consider whether what he proposes to film, and how he proposes to film it, is within the terms of classification schemes such as this. If he is unable to determine what the ordinance means, he runs the risk of being foreclosed, in practical effect, from a significant portion of the movie-going public. Rather than run that risk, he might choose nothing but the innocuous, perhaps save for the so-called “adult” picture. Moreover, a local exhibitor who cannot afford to risk losing the youthful audience when a film may be of marginal interest to adults — perhaps a “Viva Maria” — may contract to show only the totally inane. The vast wasteland that some have described in reference to another medium might be a verdant paradise in comparison. The First Amendment interests here are, therefore, broader than merely those of the film maker, distributor, and exhibitor, and certainly broader than those of youths under 16. Of course, as the Court said in Joseph Burstyn, Inc. v. Wilson, 343 U. S., at 502, “[i]t does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places.” What does follow at the least, as the cases above illustrate, is that the restrictions imposed cannot be so vague as to set “the censor... adrift upon a boundless sea...,” id., at 504. In short, as Justice Frankfurter said, “legislation must not be so vague, the language so loose, ás to leave to those who have to apply it too wide a discretion...,” Kingsley Int'l Pictures Corp. v. Regents, 360 U. S., at 694 (concurring in result), one reason being that “where licensing is rested, in the first instance, in an administrative agency, the available judicial review is in effect rendered inoperative [by vagueness],” Joseph Burstyn, Inc. v. Wilson, supra, at 532 (concurring opinion). Thus, to the extent that vague standards do not sufficiently guide the censor, the problem is not cured merely by affording de novo judicial review. Vague standards, unless narrowed by interpretation, encourage erratic administration whether the censor be administrative or judicial; “individual impressions become the yardstick of action, and result in regulation in accordance with the beliefs of the individual censor rather than regulation by law,” Kingsley Int’l Pictures Corp. v. Regents, supra, at 701 (Clark, J., concurring in result). The dangers inherent in vagueness are strikingly illustrated in these cases. Five members of the Board viewed “Viva Maria.” Eight members voted to classify it as “not suitable for young persons,” the ninth member not voting. The Board gave no reasons for its determination. Appellee alleged in its petition for an injunction that the classification was warranted because the film portrayed “sexual promiscuity in such a manner as to be in the judgment of the Board likely to incite or encourage delinquency or sexual promiscuity on the part of young persons or to appeal to their prurient interests.” Two Board members, a clergyman and a lawyer, testified at the hearing. Each adverted to several scenes in the film which, in their opinion, portrayed male-female relationships in a way contrary to “acceptable and approved behavior.” Each acknowledged, in reference to scenes in which clergymen were involved in violence, most of which was farcical, that “sacrilege” might have entered into the Board’s determination. And both conceded that the asserted portrayal of “sexual promiscuity” was implicit rather than explicit, i. e., that it was a product of inference by, and imagination of, the viewer. So far as “judicial superintendence” and de novo review are concerned, the trial judge, after viewing the film and hearing argument, stated merely: “Oh, I realize you gentlemen might be right. There are two or three features in this picture that look to me would be unsuitable to young people.... So I enjoin the exhibitor... from exhibiting it.” Nor did the Court of Civil Appeals provide much enlightenment or a narrowing definition of the ordinance. United Artists argued that the obscenity standards similar to those set forth in Roth v. United States, 354 U. S. 476 (1957), and other decisions of this Court ought to be controlling. The majority of the Court of Civil Appeals held, alternatively, (1) that such cases were not applicable because the legislation involved in them resulted in suppression of the offending expression rather than its classification; (2) that if obscenity standards were applicable then “Viva Maria” was obscene as to adults (a patently untenable conclusion) and therefore entitled to no constitutional protection; and (3) that if obscenity standards were modified as to children, the film was obscene as to them, a conclusion which was not in terms given as a narrowing interpretation of any specific provision of the ordinance. 402 S. W. 2d 770, 775-776. In regard to the last alternative holding, we must conclude that the court in effect ruled that the “portrayal... of sexual promiscuity as acceptable,” id., at 775, is in itself obscene as to children. The court also held that the standards of the ordinance were “sufficiently definite.” Ibid. Thus, we are left merely with the film and directed to the words of the ordinance. The term “sexual promiscuity” is not there defined and was not interpreted in the state courts. It could extend, depending upon one’s moral judgment, from the obvious to any sexual contacts outside a marital relationship. The determinative manner of the- “describing or portraying” of the subjects covered by the ordinance (see supra, at 681), including “sexual promiscuity,” is defined as “such a manner as to be, in the judgment of the Board, likely to incite or encourage delinquency or sexual promiscuity on the part of young persons.” A film is so “ ‘likely to incite or encourage’ crime delinquency or sexual promiscuity on the part of young persons, if, in the judgment of the Board, there is a substantial probability that it will create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted.” It might be excessive literalism to insist, as do appellants, that because those last six adjectives are stated in the disjunctive, they represent separate and alternative subtle determinations the Board is to make, any of which results in a not suitable classification. Nonetheless, “[w]hat may be to one viewer the glorification of an idea as being ‘desirable, acceptable or proper’ may to the notions of another be entirely devoid of such a teaching. The only limits on the censor’s discretion is his understanding of what is included within the term ‘desirable, acceptable or proper.’ This is nothing less than a roving commission....” Kingsley Int’l Pictures Corp. v. Regents, 360 U. S., at 701 (Clark, J., concurring in result). Vagueness and the attendant evils we have earlier described, see supra, at 683-685, are not rendered less objectionable because the regulation of expression is one of classification rather than direct suppression. Cf. Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963). Nor is it an answer to an argument that a particular regulation of expression is vague to say that it was adopted for the salutary purpose of protecting children. The permissible extent of vagueness is not directly proportional to, or a function of, the extent of the power to regulate or control expression with respect to children. As Chief Judge Fuld has said: “It is... essential that legislation aimed at protecting children from allegedly harmful expression — no less than legislation enacted with respect to adults — be clearly drawn and that the standards adopted be reasonably precise so that those who are governed by the law and those that administer it will understand its meaning and application.” People v. Kahan, 15 N. Y. 2d 311, 313, 206 N. E. 2d 333, 335 (1965) (concurring opinion). The vices — the lack of guidance to those who seek to adjust their conduct and to those who seek to administer the law, as well as the possible practical curtailing of the effectiveness of judicial review — are the same. It is not our province to draft legislation. Suffice it to say that we have recognized that some believe “motion pictures possess a greater capacity for evil, particularly among the youth of a community, than other modes of expression,” Joseph Burstyn, Inc. v. Wilson, supra, at 502, and we have indicated more generally that because of its strong and abiding interest in youth, a State may regulate the dissemination to juveniles of, and their access to, material objectionable as to them, but which a State clearly could not regulate as to adults. Ginsberg v. New York, ante, p. 629, Here we conclude only that “the absence of narrowly drawn, reasonable and definite standards for the officials to follow,” Niemotko v. Maryland, 340 U. S. 268, 271 (1951), is fatal. The judgment of the Texas Court of Civil Appeals is reversed and the cases are remanded for further proceedings not inconsistent with this opinion. It is so ordered. APPENDIX TO OPINION OF THE COURT. Chapter 46A of the 1960 Revised Code of Civil and Criminal Ordinances of the City of Dallas, as amended, provides: Section 46A-1. Definition of Terms: (a) “Film” means any motion picture film or series of films, whether full length or short subject, but does not include newsreels portraying actual current events or pictorial news of the day. (b) “Exhibit” means to project a film at any motion picture theatre or other public place within the City of Dallas to which tickets are sold for admission. (c) “Exhibitor” means any person, firm or corporation which exhibits a film. (d) “Young person” means any person who has not attained his sixteenth birthday. (e) “Board” means the Dallas Motion Picture Classification Board established by Section 46A-2 of this ordinance. (f) “Not suitable for young persons” means: (1) Describing or portraying brutality, criminal violence or depravity in such a manner as to be, in the judgment of the Board, likely to incite or encourage crime or delinquency on the part of young persons; or (2) Describing or portraying nudity beyond the customary limits of candor in the community, or sexual promiscuity or extra-marital or abnormal sexual relations in such a manner as to be, in the judgment of the Board, likely to incite or encourage delinquency or sexual promiscuity on the part of young persons or to appeal to their prurient interest. A film shall be considered “likely to incite or encourage” crime delinquency or sexual promiscuity on the part of young persons, if, in the judgment of the Board, there is a substantial probability that it will create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted. A film shall be considered as appealing to “prurient interest” of young persons, if in the judgment of the Board, its calculated or dominant effect on young persons is substantially to arouse sexual desire. In determining whether a film is “not suitable for young persons,” the Board shall consider the films as a whole, rather than isolated portions, and shall determine whether its harmful effects outweigh artistic or educational values such film may have for young persons. (g) “Classify” means to determine whether a film is: (1) Suitable for young persons, or; (2) Not suitable for young persons. (h) “Advertisement” means any commercial promotional material initiated by an exhibitor designed to bring a film to public attention or to increase the sale of tickets to exhibitions of same, whether by newspaper, billboard, motion picture, television, radio, or other media within or originating within the City of Dallas. (i) “Initial exhibition” means the first exhibition of any film within the City of Dallas. (j) “Subsequent exhibition” means any exhibition subsequent to the initial exhibition, whether by the same or a different exhibitor.. (k) “File” means to deliver to the City Secretary for safekeeping as a public record of the City of Dallas. (l) “Classification order” means any written determination by a majority of the Board classifying a film, or granting or refusing an application for change of classification. (m) The term “Board” as used and applied in subsection (a) of Section 46A-7 shall include the City of Dallas when attempting to enforce this ordinance and the City Attorney of the City of Dallas when representing the Board or the City of Dallas. Section 46A-2. Establishment of Board: There is hereby created a Board to be known as the Dallas Motion Picture Classification Board which shall be composed of a Chairman and Eight Members to be appointed by the Mayor and City Council of the City of Dallas, whose terms shall be the same as members of the City Council. Such members shall serve without pay and shall adopt such rules and regulations as they deem best governing their action, proceeding and deliberations and time and place of meeting. These rules and regulations shall be subject to approval of the City Council. If a vacancy occurs upon the Board by death, resignation or otherwise, the governing body of the City of Dallas shall appoint a member to fill such vacancy for the unexpired term. The Chairman and all Members of the Board shall be good, moral, law-abiding citizens of the City of Dallas, and shall be chosen so far as reasonably practicable in such a manner that they will represent a cross section of the community. Insofar as practicable, the members appointed to the Board shall be persons educated and experienced in one or more of the following fields: art, drama, literature, philosophy, sociology, psychology, history, education, music, science or other related fields. The City Secretary shall act as Secretary of the Board. Section 46A-3. Classification Procedure: (a) Before any initial exhibition, the exhibitor shall file a proposed classification of the film to be exhibited, stating the title of the film and the name of the producer, and giving a summary of the plot and such other information as the Board may by rule require, together with the classification proposed by the exhibitor. The Board shall examine such proposed classification, and if it approves same, shall mark it “approved” and file it as its own classification order. If the Board fails to act, that is, either file a classification order or hold a hearing within five (5) days after such proposed classification is filed, the proposed classification shall be considered approved. (b) If upon examination of.the proposed classification a majority of the Board is not satisfied that it is proper, the Chairman shall direct the exhibitor to project the film before any five (5) or more members of the Board, at a suitably equipped place and at a specified time, which shall be the earliest time practicable with due regard to the availability of the film. The exhibitor, or his designated representative, may at such time make such statement to the Board in support of his proposed classification and present such testimony as he may desire. Within two (2) days, the Board shall make and file its classification of the film in question. (c) Any initial or subsequent exhibitor may file an application for a change in the classification of any film previously classified. No exhibitor shall be allowed to file more than one (1) application for change of classification of the same film. Such application shall contain a sworn statement of the grounds upon which the application is based. Upon filing of such application, the City Secretary shall bring it immediately to the attention of the Chairman of the Board, who upon application by the exhibitor shall set a time and place for a hearing and shall notify the applicants and all interested parties, including all exhibitors who may be exhibiting or preparing to exhibit the film. The Board shall view the film and at such hearing, hear the statements of all interested parties, and any proper testimony that may be offered, and shall within two (2) days thereafter make and file its order approving or changing such classification. If the classification of a film is changed as a result of such hearing to the classification “not suitable for young persons,” the exhibitors showing the film shall have seven (7) days in which to alter their advertising and audience policy to comply with such classification. (d) Upon filing by the Board of any classification order, the City Secretary shall immediately issue and mail a notice of classification to the exhibitor involved and to any other exhibitor who shall request such notice. (e) A classification shall be binding on any subsequent exhibitor unless and until he obtains a change of classification in the manner above provided. Section 46A-4. Offenses: (a) It shall be unlawful for any exhibitor or his employee: (1) To exhibit any film which has not been classified as provided in this ordinance. (2) To exhibit any film classified “not suitable for young persons” if any current advertisement of such film by such exhibitor fails to state clearly the classification of such film. (3) To exhibit any film classified “not suitable for young persons” without keeping such classification posted prominently in front of the theatre in which such film is being exhibited. (4) Knowingly to sell or give to any young person a ticket to any film classified “not suitable for young persons.” (5) Knowingly to permit any young person to view the exhibition of any film classified “not suitable for young persons.” (6) To exhibit any film classified “not suitable for young persons” or any scene or scenes from such a film, or from an unclassified film, whether moving or still, in the same theatre and on the same program with a film classified “suitable for young persons”; provided that any advertising preview or trailer containing a scene or scenes from an unclassified film or a film classified “not suitable for young persons” may be shown at any time if same has been separately classified as “suitable for young persons” under the provisions of Section 46A-3 of this ordinance. (7) To make any false or willfully misleading statement in any proposed classification, application for change of classification, or any other proceeding before the Board.' (8) To exhibit any film classified “not suitable for young persons” without having in force the license hereinafter provided. (b) It shall be unlawful for any young person: (1) To give his age falsely as sixteen (16) years of age or over, for the purpose of gaining admittance to an exhibition of a film classified “not suitable for young persons.” (2) To enter or remain in the viewing room of any theatre where a film classified “not suitable for young persons” is being exhibited. (3) To state falsely that he or she is married for the purpose of gaining admittance to an exhibition of a film classified as “not suitable for young persons.” (c) It shall be unlawful for any person: (1) To sell or give any young person a ticket to an exhibition of a film classified “not suitable for young persons.” (2) To make any false or willfully misleading statement in an application for change of classification or in any proceeding before the Board. (3) To make any false statements for the purpose of enabling any young person to gain admittance to the exhibition of a film classified as “not suitable for young persons.” (d) To the extent that any prosecution or other proceeding under this ordinance, involves the entering, purchasing of a ticket, or viewing by a young person of a film classified “not suitable for young persons,” it shall be a valid defense that such young person was accompanied by his parent or legally appointed guardian, husband or wife, throughout the viewing of such film. Section 46A-5. License: Every exhibitor holding a motion picture theatre or motion picture show license issued pursuant to Chapter 46 of the 1960 Revised Code of Civil and Criminal Ordinances of the City of Dallas shall be entitled to issuance of a license by the City Secretary to exhibit films classified “not suitable for young persons.” Section 46A-6. Revocation or suspension of license: Whenever the City Attorney or any person acting under his direction, or any ten (10) citizens of the City of Dallas, shall file a sworn complaint with the City Secretary stating that any exhibitor has repeatedly violated the provisions of this ordinance, or that any exhibitor has persistently failed to use reasonable diligence to determine whether those seeking admittance to the exhibition of a film classified “not suitable for young persons” are below the age of sixteen (16), the City Secretary shall immediately bring such complaint to the attention of the City Council who shall set a time and place for hearing such complaint and cause notice of such hearing to be given to the complainants and to the exhibitor involved. The City Council shall have authority to issue subpoenas requiring witnesses to appear and testify at such hearing, and any party to such hearing shall be entitled to such process. If, after hearing the evidence, the City Council shall find the charges in such complaint to be true, it shall issue and file an order revoking or suspending the license above provided, insofar as it grants the privilege of showing such classified pictures, for a specific period not to exceed one (1) year, or may issue a reprimand if it is satisfied that such violation will not continue. The City Council likewise, after notice and hearing, may revoke or suspend the license of any exhibitor who has refused or unreasonably failed to produce or delayed the submission of a film for review, when requested by the Board. Section 46A-7. Judicial Review: (a) Within two (2) days after the filing of any classification by the Board, other than an order approving the classification proposed by an exhibitor,' any exhibitor may file a notice of non-acceptance of the Board’s classification, stating his intention to exhibit the film in question under a different classification. Thereupon it shall be the duty of the Board to do the following: (I) Within three (3) days thereafter to make application to a District Court of Dallas County, Texas, for a temporary and a permanent injunction to enjoin such defendant-exhibitor, being the exhibitor who contests the classification, from exhibiting the film in question contrary to the provisions of this ordinance. (2) To have said application for temporary injunction set for hearing within five (5) days after the filing thereof. In the event the defendant-exhibitor appears at or before the time of the hearing of such temporary injunction, waives the notice otherwise provided by the Texas Rules of Civil Procedure, and requests that at the time set for such hearing the Court proceed to hear the case under the Texas Rules of Civil Procedure for permanent injunction on its merits, the Board shall be required to waive its application for temporary injunction and shall join in such request. In the event the defendant-exhibitor does not waive notice and/or does not request an early hearing on the Board’s application for permanent injunction, it shall nevertheless be the duty of the board to obtain the earliest possible setting for such hearing under the provisions of State law and the Texas Rules of Civil Procedure. (3) If the injunction is granted by the trial court and the defendant-exhibitor appeals to the Court of Civil Appeals, the Board shall waive any and all statutory notices and times as provided for in the Texas State Statutes and Texas Rules of Civil Procedure,, and shall within five (5) days after receiving a copy of appealing exhibitor’s brief, file its reply brief, if required, and be prepared to submit the case upon oral submission or take any other reasonable action requested by the appealing exhibitor to expedite the submission of the case to the Court of Civil. Appeals, and shall upon request of the appealing exhibitor, jointly with such exhibitor, request the Court of Civil Appeals to advance the cause upon the docket and to give it a preferential setting the same as is afforded an appeal from a temporary injunction or other preferential matters. (4) If the Court of Civil Appeals should by its judgment affirm the judgment of the trial court granting the injunction and the appealing exhibitor should file an application for writ of error to the Texas Supreme Court, the Board shall be required to waive any and all notices and times as provided for in the Texas State Statutes and the Texas Rules of Civil Procedure, and shall within five (5) days after receiving a copy of the application for writ of error, file its reply brief, if required, and be prepared to submit the case upon oral submission or take any other reasonable action requested by the appealing exhibitor to expedite the submission of the case to the Supreme Court and shall upon request of the appealing exhibitor, jointly with such exhibitor, request the Supreme Court to advance the cause upon the docket and to give it a preferential setting the same as is afforded an appeal from a temporary injunction or other preferential matters. (5) If the District Court denies the Board’s application for injunction, and the Board elects to appeal, the Board shall be required to waive all periods of time allowed it by the Texas Rules of Civil Procedure and if a motion for a new trial is required, shall file said motion within two (2) days after the signing of the judgment, (or on the following Monday if said period ends on a Saturday or Sunday, or on the day following if the period ends on a Legal Holiday), shall not amend said motion and shall obtain a hearing on such motion within five (5) days time. If no motion for new trial is required as a prerequisite to an appeal under the Texas Rules of Civil Procedure, the Board shall not file such a motion. Within ten (10) days after the judgment is signed by the District Court denying such injunction or within ten (10) days after the order overruling the Board’s motion for new trial is signed, if such motion is required, the Board shall complete all steps necessary for the perfection of its appeal to the Court of Civil Appeals, including the filing of the Transcript, Statement of Facts and Appellant’s brief. Failure to do so shall constitute an abandonment of the appeal. On filing the record with the Court of Civil Appeals, the Board shall file a motion to advance requesting the Court to give a preferential setting the same as is afforded an appeal from a temporary injunction or other preferential matters. (6) If the Court of Civil Appeals reverses the trial court after the trial court has granted an injunction, or if the Court of Civil Appeals refuses to reverse the trial court after that court has failed to grant an injunction, then if the Board desires to appeal from the decision of the Court of Civil Appeals by writ of error to the Supreme Court of the State of Texas, it must file its motion for rehearing within two (2) days of rendition of the decision of the Court of Civil Appeals (or on the following Monday, if said period ends on a Saturday or Sunday, or on the day following if the period ends on a Legal Holiday), and shall file its application for writ of error within ten (10) days after the Court of Civil Appeals’ order overruling such motion for rehearing, and failure to do so shall waive all rights to appeal from the decision of the Court of Civil Appeals. At the time of filing the application for writ of error, the Board shall also request the Supreme Court to give the case a preferential setting and advance the same on the docket. (b) The filing of such notice of non-accept Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

C

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Powell delivered the opinion of the Court. We consider on this appeal whether administrative regulations of the State of Wisconsin governing the length and configuration of trucks that may be operated within the State violate the Commerce Clause because they unconstitutionally burden or discriminate against interstate commerce. The three-judge District Court held that the regulations are not unconstitutional on either ground. Because we conclude that they unconstitutionally burden interstate commerce, we reverse; I Appellant Raymond Motor Transportation, Inc. (Raymond), a Minnesota corporation with its principal place of business in Minneapolis, is a common carrier of general commodities by-motor vehicle. Operating pursuant to a certificate of public convenience and necessity granted by the Interstate Commerce Commission, see 49 U. S. C. §§ 306-308, Raymond provides service in eastern North Dakota, Minnesota, northern Illinois, and northwestern Indiana. Its primary interstate route is between Chicago and Minneapolis. It does not serve any points in Wisconsin. Appellant Consolidated Freightways Corporation of Delaware (Consolidated), a Delaware corporation with its principal place of business in Menlo Park, Cal., also is a common carrier of general commodities by motor vehicle. Consolidated operates nationwide, providing service under a certificate of public convenience and necessity in 42 States and Canada. Among other routes, Consolidated carries commodities between Chicago, Detroit, and points east, and Minneapolis and points west to Seattle. Unlike Raymond, Consolidated does carry commodities between Wisconsin and other States, and it maintains terminals in Milwaukee and Madison where truckloads of goods are dispatched and received. Both Raymond and Consolidated use two different kinds of trucks. One consists of a three-axle power unit (tractor) which pulls a single two-axle trailer that is 40 feet long. The overall length of such a single-trailer unit (single) is 55 feet. This unit has been used on the Nation’s highways for many years and is an industry standard. The other type truck consists of a two-axle tractor which pulls a single-axle trailer to which a single-axle dolly and a second single-axle trailer are attached. Each trailer is 27 feet long, and the overall length of such a double-trailer unit (double) is 65 feet. The double, which has come into increasing use in recent years, is thought to have certain advantages over the single for general commodities shipping. Because of these advantages, Raymond would prefer to use doubles on its route between Chicago and Minneapolis. Consolidated would prefer to use doubles on its routes between Chicago, Detroit, and points east, and Minneapolis and points west, as well as on its routes commencing and ending in Milwaukee and Madison. The most direct route for all of this traffic is over Interstate Highways 90 and 94, both of which cross Wisconsin between Illinois and Minnesota. State law allows 65-foot doubles to be operated on interstate highways and access roads in Michigan, Illinois, Minnesota, and all of the States west from Minnesota to Washington through which Interstate Highways 90 and 94 run. Wisconsin law, however, generally does not allow trucks longer than 55 feet to be operated on highways within that State. The key statutory provision is Wis. Stat. § 348.07 (1) (1975), which sets a limit of 55 feet on the overall length of a vehicle pulling one trailer. Any person operating a single-trailer unit of greater length must obtain a permit issued by the State Highway Commission. In addition, § 348.08 (1) provides that no vehicle pulling more than one other vehicle shall be operated on a highway without a permit. The Commission is authorized to issue various classes of annual permits for the operation of vehicles that do not conform to the above requirements. In particular, it may issue “trailer train” permits for the operation of combinations of more than two vehicles “consisting of truck tractors, trailers, semitrailers or wagons which do not exceed a total length of 100 feet,” § 348.27 (6). The Commission may also “impose such reasonable conditions” and “adopt such reasonable rules” of operation with respect to vehicles operated under permit “as it deems necessary for the safety of travel and protection of the highways,” § 348.25 (3), including specification of the routes to be used by permittees. The Commission has issued administrative regulations setting forth the conditions under which “trailer train” and other classes of permits will be issued. Although the Commission is empowered by § 348.27 (6) to issue “trailer train” permits to operate double-trailer trucks up to 100 feet long, its regulations restrict such permits to “the operation of vehicles used for the transporting of municipal refuse or waste, or for the interstate or intra-state operation without load of vehicles in transit from manufacturer or dealer to purchaser or dealer, or for the purpose of repair.” Wis. Admin. Code § Hy 30.14 (3) (a) (July 1975). “Trailer train” permits also are issued “for the operation of a combination of three vehicles used for the transporting of milk from the point of production to the point of first processing,” § Hy 30.18 (3) (a) (June 1976). II The overture to this lawsuit began when Raymond and Consolidated each applied to the appropriate Wisconsin officials under § 348.27 (6) for annual permits to operate 65-foot doubles on Interstate Highways 90 and 94 between Illinois and Minnesota and, in Consolidated’s case, on short stretches of four-lane divided highways between the interstate highways and freight terminals in Milwaukee and Madison. The permits were denied because appellants’ proposed operations were not within the narrow scope of the administrative regulations that specify when “trailer train” permits will be issued. Appellants then filed suit in Federal District Court seeking declaratory and injunctive relief on the ground that the regulations barring the proposed operation of 65-foot doubles burden and discriminate against interstate commerce in violation of the Commerce Clause, Art. I, § 8, cl. 3. The complaint alleged that the State’s refusal to issue the requested permits disrupts and delays appellants’ transportation of commodities in interstate commerce; that 65-foot doubles are as safe as, if not safer than, the 55-foot singles that are allowed to operate on Wisconsin highways without permits; and that the maze of statutory and administrative exceptions to the general prohibition against operating vehicles longer than 55 feet results in “ ‘over-length’ permits [being] routinely granted to classes of vehicles indistinguishable from those of the Plaintiffs in terms of size, safety, and divisibility of loads....” App. 18. A three-judge District Court was convened pursuant to 28 U. S. C. § 2281. After a pretrial conference, the court directed the State to file an amended answer setting forth every justification for its refusal to issue the permits sought, “such as safety, for example.” App. 25. The State's amended answer advanced highway safety as its sole justification. Id., at 27-29. By agreement of the parties, the case was tried on affidavits, depositions, and exhibits. Appellants presented a great deal of evidence supporting their allegation that 65-foot doubles are as safe as, if not safer than, 55-foot singles when operated on limited-access, four-lane divided highways. For example, the Deputy Director of the Bureau of Motor Carrier Safety, Federal Highway Administration, United States Department of Transportation, testified on deposition that the Bureau's five-year study of the accident experience of selected motor carriers that use both types of trucks showed that doubles are safer than singles in terms of the number of accidents, injuries, and fatalities per 100,000 miles, and in terms of the amount of property damage and number of injuries and fatalities per accident. The deponent's own expert opinion was that doubles are safer because of the articulation between the first and second trailers, which allows greater maneuverability and prevents the back wheels of the second trailer from deviating from the path of the front wheels of the tractor (offtracking) as much as the back wheels of a 55-foot single; because loads typically are distributed more evenly in doubles than in singles; and because doubles typically have better braking capability than singles. Other experts testified that 65-foot doubles brake as well as 55-foot singles, maneuver and track better, are less prone to jackknife, and produce less splash and spray to obscure the vision of drivers in following and passing vehicles. These experts agreed that the difference in the amount of time needed to pass a 55-foot single and a 65-foot double has no appreciable effect on motorist safety on limited-access, four-lane divided highways. Appellants also produced depositions and affidavits of state highway safety officials from 12 of the States where 65-foot doubles are allowed on some or ail highways; all shared the opinion that 65-foot doubles are as safe as 55-foot singles. The State, for reasons unexplained, made no effort to contradict this evidence of comparative safety with evidence of its own. The Chairman of the State Highway Commission, while acknowledging the Commission’s statutory authority to issue the permits sought by appellants, testified that the regulations preventing their issuance are not based on an administrative assessment of the safety of 65-foot doubles, and he himself was “not prepared to make a statement relative to the safety of these vehicles.” App. 250. The reason for the Commission’s adoption of these regulations, according to the Chairman, was its belief that the people of the State did not want more vehicles over 55 feet long on the State’s highways. The State produced no evidence, nor has it made any suggestion in this Court, that 65-foot doubles are less safe than 55-foot singles because of their extra trailer, as distinguished from their extra length. Appellants also produced uncontradicted evidence showing that their operations are disrupted, their costs are raised, and their service is slowed by the challenged regulations. For example, Consolidated ordinarily finds it faster and less expensive to use 65-foot doubles to carry interstate freight originating from or destined for Milwaukee and Madison. To comply with Wisconsin law, however, an interstate double bound for Wisconsin must stop before entering the State and detach one of its two trailers. Consolidated then pulls each trailer separately to the freight terminal in Milwaukee or Madison. Likewise, each trailer of a double outbound from one of those cities must be pulled across the Wisconsin state line separately, at which point they are united into a double-trailer combination. Consolidated maintains a crew of drivers in Wisconsin whose sole responsibility is to shuttle second trailers to and from the state line. On routes through Wisconsin between Chicago and Minneapolis, both Consolidated and Raymond are compelled to use 55-foot singles instead of 65-foot doubles because each trailer of a double would have to be pulled by a separate tractor on the portion of the route that is in Wisconsin. On its long east-west routes from Detroit and Chicago to Seattle, Consolidated must divert doubles south of Wisconsin through Missouri and Nebraska in order to avoid Wisconsin’s ban. These routes would involve a considerably shorter distance if Consolidated’s trucks could go through Wisconsin. Finally, appellants’ evidence demonstrated that Wisconsin routinely allows a great number and variety-of vehicles over 55 feet long to be operated on the State’s highways. App. 178-181. The three-judge court ruled against appellants. 417 F. Supp. 1352 (WD Wis. 1976) (per curiam). The court found that the Wisconsin regulatory scheme does not discriminate against interstate commerce. Id., at 1356-1358. The court also considered “whether the burden imposed upon interstate commerce outweighs the benefits to the local popul[ace],” id., at 1358, and concluded that it did not. It thought that appellants had not shown that the State’s refusal to issue permits for appellants’ 65-foot doubles had no relation to highway safety, pointing to the fact that, other things being equal, it takes longer for a motorist to pass a 65-foot truck than a 55-foot truck. Id., at 1359. The court considered the expense imposed on appellants to be “of no material consequence.” Id., at 1361. We noted probable jurisdiction. 430 U.S. 914 (1977). Ill Appellants challenge both branches of the District Court’s holding. First, they contend that the State’s refusal to issue the requested “trailer train” permits under § 348.27 (6) burdens interstate commerce in violation of the Commerce Clause because it substantially interferes with the movement of goods in interstate commerce and makes no contribution to highway safety. Second, they argue that § 348.27 (4), authorizing issuance of “interplant” permits, see n. 5, supra, discriminates against interstate commerce in violation of the Commerce Clause because it allows permits to be issued to carry the products of Wisconsin industries, but not of other States’ industries, over Wisconsin highways in trucks longer than 55 feet. We find it necessary to address the second contention only as it bears on the first. By its terms, the Commerce Clause grants Congress the power “[t]o regulate Commerce... among the several States....” Long ago it was settled that even in the absence of a congressional exercise of this power, the Commerce Clause prevents the States from erecting barriers to the free flow of interstate commerce. Cooley v. Board of Wardens, 12 How. 299 (1852); see Great A&P Tea Co. v. Cottrell, 424 U. S. 366, 370-371 (1976). At the same time, however, it never has been doubted that much state legislation, designed to serve legitimate state interests and applied without discrimination against interstate commerce, does not violate the Commerce Clause even though it affects commerce. H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S, 525, 531-532 (1949); see Gibbons v. Ogden, 9 Wheat. 1, 203-206 (1824); id., at 235 (Johnson, J., concurring). “[I]n areas where activities of legitimate local concern overlap with the national interests expressed by the Commerce Clause — where local and national powers are concurrent — -the Court in the absence of congressional guidance is called upon to make ‘delicate adjustment of the conflicting state and federal claims,’ H. P. Hood & Sons, Inc. v. Du Mond, supra, at 553 (Black, J., dissenting)....” Great A&P Tea Co. v. Cottrell, supra, at 371; see Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 350 (1977). In this process of “delicate adjustment,” the Court has employed various tests to express the distinction between permissible and impermissible impact upon interstate commerce, but experience teaches that no single conceptual approach identifies all of the factors that may bear on a particular case. Our recent decisions make clear that the inquiry necessarily involves a sensitive consideration of the weight and nature of the state regulatory concern in light of the extent of the burden imposed on the course of interstate commerce. As the Court stated in Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970): “Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U. S. 440, 443. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” Accord, Great A&P Tea Co. v. Cottrell, supra, at 371-372; Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 804 (1976); see also Hunt v. Washington Apple Advertising Comm’n, supra, at 350. In the instant case, appellants do not dispute that a State has a legitimate interest in regulating motor vehicles using its roads in order to promote highway safety. Nor do they contend that federal regulation has pre-empted state regulation of truck length or configuration. They argue, however, that the burden imposed upon interstate commerce by the Wisconsin regulations challenged here is, in the language of Pike v. Bruce Church, Inc., “clearly excessive in relation to the putative local benefits.” Appellants contend that the regulations were shown by uncontradicted evidence to make no contribution to highway safety, while imposing a burden on interstate commerce that is substantial in terms of expense and delay. They analogize this case to Bibb v. Navajo Freight Lines, 359 U. S. 520 (1959), where the Court invalidated an Illinois law, defended on the ground that it promoted highway safety, that required trailers of trucks driven within Illinois to be equipped with contour mudguards. The State replies that the general rule of Pike is not applicable to a State’s regulation of motor vehicles in the promotion of safety. It contends that we should be guided, instead, by South Carolina Highway Dept. v. Barnwell Bros., Inc., 303 U. S. 177 (1938), which upheld over Commerce Clause objections a state law that set stricter limitations on truck width and weight than did surrounding States’ laws. The State emphasizes that Barnwell Bros, applied a “rational relation” test rather than a “balancing” test, and argues that its regulations bear a rational relation to highway safety: Longer trucks take longer to pass or be passed than shorter trucks. We acknowledge, as did the Court in Bibb, that there is language in Barnwell Bros, “which, read in isolation from... later decisions..., would suggest that no showing of burden on interstate commerce is sufficient to invalidate local safety regulations in absence of some element of discrimination against interstate commerce.” 359 U. S., at 528-529. But Bibb rejected such a suggestion by stating the test to be applied to state highway regulation in terms similar in principle to the subsequent formulation in Pike v. Bruce Church, Inc.: “Unless we can conclude on the whole record that ‘the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it’... we must uphold the statute.” 359 U. S., at 524, quoting Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 775-776 (1945). Thus, we cannot accept the State’s contention that the inquiry under the Commerce Clause is ended without a weighing of the asserted safety purpose against the degree of interference with interstate commerce. Nevertheless, it also is true that the Court has been most reluctant to invalidate under the Commerce Clause “ ‘state legislation in the field of safety where the propriety of local regulation has long been recognized.’ ” Pike v. Bruce Church, Inc., supra, at 143, quoting Southern Pacific Co. v. Arizona ex rel. Sullivan, supra, at 796 (Douglas, J., dissenting). In no field has this deference to state regulation been greater than that of highway safety regulation., See, e. g., Hendrick v. Maryland, 235 U. S. 610 (1915); Sproles v. Binjord, 286 U. S. 374 (1932); Maurer v. Hamilton, 309 U. S. 598 (1940); Railway Express Agency, Inc. v. New York, 336 U. S. 106 (1949). Thus, those who would challenge state regulations said to promote highway safety must overcome a “strong presumption of [their] validity.” Bibb, supra, at 524. Despite the strength of this presumption, we are persuaded by the record in this case that the challenged regulations unconstitutionally burden interstate commerce. As we have shown, appellants produced a massive array of evidence to disprove the State’s assertion that the regulations make some contribution to highway safety. The State, for its part, virtually defaulted in its defense of the regulations as a safety measure. Both it and the District Court were content to assume that the regulations contribute to highway safety because appellants’ 65-foot doubles take longer to pass or be passed than the 55-foot singles. Yet appellants produced uncontradicted evidence that the difference in passing time does not pose an appreciable threat to motorists traveling on limited access, four-lane divided highways. They also showed that the Highway Commission routinely allows many other vehicles 55 feet or longer to use the State’s highways. In short, the State’s assertion that the challenged regulations contribute to highway safety is rebutted by appellants’ evidence and undercut by the maze of exemptions from the general truck-length limit that the State itself allows. Moreover, appellants demonstrated, again without contradiction, that the regulations impose a substantial burden on the interstate movement of goods. The regulations substantially increase the cost of such movement, a fact which is not, as the District Court thought, entirely irrelevant. In addition, the regulations slow the movement of goods in interstate commerce by forcing appellants to haul doubles across the State separately, to haul doubles around the State altogether, or to incur the delays caused by using singles instead of doubles to pick up and deliver goods. See Bibb, 359 U. S., at 527. Finally, the regulations prevent appellants from accepting interline transfers of 65-foot doubles for movement through Wisconsin from carriers that operate only in the 33 States where the doubles are legal. See id., at 527-528. In our view, the burden imposed on interstate commerce by Wisconsin’s regulations is no less than that imposed by the statute invalidated in Bibb. One other consideration, although not decisive, lends force to our conclusion that the challenged regulations cannot stand. As we have noted, Wisconsin’s regulatory scheme contains a great number of exceptions to the general rule that vehicles over 55 feet long cannot be operated on highways within the State. At least one of these exceptions discriminates on its face in favor of Wisconsin industries and against the industries of other States, and there are indications in the record that a number of the other exceptions, although neutral on their face, were enacted at the instance of, and primarily benefit, important Wisconsin industries. Viewed realistically, these exceptions may be the product of compromise between forces within the State that seek to retain the State’s general truck-length limit, and industries within the State that complain that the general limit is unduly burdensome. Exemptions of this kind, however, weaken the presumption in favor of the validity of the general limit, because they undermine the assumption that the State’s own political processes will act as a check on local regulations that unduly burden interstate commerce. See n. 18, supra. IV On this record, we are persuaded that the challenged regulations violate the Commerce Clause because they place a substantial burden on interstate commerce and they cannot be said to make more than the most speculative contribution' to highway safety. Our holding is a narrow one, for we do not decide whether laws of other States restricting the operation of trucks over 55 feet long, or of double-trailer trucks, would be upheld if the evidence produced on the safety issue were not so overwhelmingly one-sided as in this case. The State of Wisconsin has failed to make even a colorable showing that its regulations contribute to highway safety. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Stevens took no part in the consideration or decision of this case. Appendix A of the District Court opinion contains illustrations of both kinds of trucks. 417 F. Supp. 1352, 1363 (WD Wis. 1976) (per curiam). A double can carry a greater volume of general commodities than a single, often without exceeding legal limits on gross vehicle weights. Thus, fewer doubles than singles are needed to carry a given amount of cargo, with consequent savings in fuel and drivers’ time. In addition, because the trailers of a double can be routed separately, cargo can be picked up from various shippers, dispatched, and delivered to various destinations more quickly by use of doubles than singles. Subsequent to the District Court’s decision, this section was amended to allow single-trailer units up to 59 feet long to be operated without a permit “providing the cargo or cargo space of the semitrailer is 45 feet or less in length and the truck tractor is within the statutory limit in sub. (1).” 1977 Wis. Laws, ch. 29, § 1487h, adding § 348.07 (2) (g). Exempted from the length limit of § 348.07 (1) are combinations of mobile homes and their towing vehicles, if their overall length does not exceed 60 feet, §348.07 (2)(d), and implements of husbandry operated temporarily upon the highway, § 348.07 (2) (e). The District Court assumed that § 348.08 (1) generally allows double-trailer trucks up to 55 feet long to be operated without permits. See 417 F. Supp., at 1354-1355. The State concedes that this assumption was erroneous. Tr. of Oral Arg. 34-37. The section, however, does exempt from its permit requirement combinations of two vehicles pulled by a third and “being transported by the drive-away method in saddle-mount combination,” where overall length does not exceed 55 feet, § 348.08 (1) (a); combinations of farm tractors pulling two trailers or one trailer and one implement of husbandry, if the combination is used exclusively for farming and its overall length does not exceed 55 feet, § 348.08 (1) (b); and “tour trains” operated primarily on county and municipal roads for recreational or educational purposes, § 348.08 (1) (c). The terms “drive-away method” and “saddle-mount combination” in § 348.08 (1) (a) are not defined by the statute or regulations, but they apparently refer to a method of towing one four-wheel motor vehicle by resting its front wheels on the back of a second four-wheel motor vehicle. See 49 CFR §§ 390.9, 393.71, and 393.17 (1976). The Commission also is authorized to issue annual permits to operate overlength vehicles “to industries and to their agent motor carriers owning and operating oversize vehicles in connection with interplant, and from plant to state line, operations in this state,” § 348.27 (4); “to pipeline companies or operators or public service corporations for transportation of poles, pipe, girders and similar materials... used in its [sic] business,” § 348.27 (5); “to companies and individuals hauling peeled or unpeeled pole-length forest products used in its [sic] business,” provided that overall length does not exceed 65 feet, § 348.27 (5); “to auto carriers operating ‘haulaways’ specially constructed to transport motor vehicles,” provided that overall length does not exceed 65 feet, § 348.27 (5); “to licensed mobile home transport companies and to licensed mobile home manufacturers and dealers authorizing them to transport oversize mobile homes,” § 348.27 (7); to persons transporting “loads of pole length and pulpwood exceeding statutory length... limitations... for a distance not to exceed 3 miles from the Michigan-Wisconsin state line,” § 348.27 (9); and to other persons “[f]or good cause in specified instances... for a specified period... [to] allow loads exceeding the size... limitations imposed by this chapter,” §348.27 (3). Section 348.25 (4) provides that permits “shall be issued only for the transporting of a single article or vehicle which exceeds statutory size... limitations and which cannot reasonably be divided or reduced to comply with statutory size... limitations....'” The Commission by regulation, however, exempts general, industrial interplant, and double-trailer milk truck permits from this requirement. Wis. Admin. Code § Hy 30.01 (3) (c) (June 1976). It appears that the Commission interprets § 348.25 (4) to require only that it would be less economical, rather than physically impossible, to divide a load. See App. 200, 210, 211-212. Consolidated also sought authority to operate over Interstate Highway 894, an alternative route which bypasses the Milwaukee metropolitan area. The complaint named as defendants, individually and in their official capacities, Rice, the Secretary of the Wisconsin Department of Transportation; Huber, the Chairman of the Wisconsin Highway Commission; Sweda and Young, members of the Commission; Volk, the Chief Traffic Engineer of Wisconsin; Versnik, the commanding officer of the Wisconsin State Patrol; and LaFollette, the Attorney General of Wisconsin. We shall refer to the defendants collectively as “the State.” The complaint also stated a claim under the Equal Protection Clause of the Fourteenth Amendment which the District Court rejected and which we do not reach. Section 2281 was repealed by Pub. L. 94 — 381, 90 Stat. 1119, the day before the three-judge court’s decision in this case. The repeal, however, did not affect actions commenced on or before its date of enactment. See § 7 of Pub. L. 94-381, 90 Stat. 1120. According to a stipulated exhibit, at the time of trial only 17 States and the District of Columbia did not allow 65-foot doubles on their highways. A few more permitted their operation on designated highways, and the rest allowed them on all highways. App. 278. For a more detailed summary of current state laws regulating truck length and configuration, see American Association of State Highway and Transportation Officials, Legal Maximum Dimensions and Weights of Motor Vehicles Compared with AASHTO Standards (1976). The State did introduce expert testimony that occupants of smaller vehicles are more likely to be killed in collisions with large trucks than occupants of larger vehicles. The study upon which this testimony was based did not distinguish between 55-foot singles and 65-foot doubles, and the State’s expert witness had no opinion as to their relative safety. App. 154. He also said that the state legislature, in response to this feeling, had declined to enact legislation that would have allowed 65-foot doubles to be operated without permits. He interpreted this legislative inaction as evidence of a legislative intent that the Commission should not issue permits for such trucks, despite its statutory power to do so. Indeed, the State agrees that “[a]ppellants have shown that 65 foot twin trailers have as good a safety record as other large vehicles.” Brief for Appellees 13. It appears that 65-foot doubles must be routed as far south as Missouri because Iowa, which Interstate Highway 80 crosses on an east-west route, also bans 65-foot doubles. An officer of Consolidated estimated that it costs the company in excess of $2 million annually to make the various adjustments in operations that are required by Wisconsin law. An officer of Raymond estimated that the company could save up to $63,000 annually on fuel and up to $102,000 annually on drivers’ wages if it could use 65-foot doubles on its route between Chicago and Minneapolis. Cooley v. Board of Wardens, 12 How. 299, 319 (1852), distinguished between subjects “imperatively demanding a single uniform rule” and subjects “imperatively demanding that diversity, which alone can meet the local necessities.” Other cases have distinguished between stats regulations that affect interstate commerce “directly,” and those that affect it “indirectly.” E. g., Hall v. DeCuir, 95 U. S. 485, 488 (1878); Smith v. Alabama, 124 U. S. 465, 482 (1888). And many cases have distinguished between regulations that are an exercise of the State’s “police powers,” and those that are “regulations of commerce.” E. g., Railroad Co. v. Fuller, 17 Wall. 560, 570 (1873); Smith v. Alabama, supra, at 482. See, e. g., Di Santo v. Pennsylvania, 273 U. S. 34, 44 (1927) (Stone, J., dissenting); Parker v. Brown, 317 U. S. 341, 362-363 (1943); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 768-769 (1945); H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 552-553 (1949) (Black, J., dissenting). Congress has considered pre-empting this field, but it has not acted. See, e. g., S. Rep. No. 93-1111, p. 10 (1974); Hearings on Transportation and the New Energy Policies (Truck Sizes and Weights) before the Subcommittee on Transportation of the Senate Committee on Public Works, 93d Cong., 2d Sess. (1974). The Court’s special deference to state highway regulations derives in part from the assumption that where such regulations do not discriminate on their face against interstate commerce, their burden usually falls on local economic interests as well as other States’ economic interests, thus insuring that a State’s own political processes will serve as a check against unduly burdensome regulations. Compare South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177, 187 (1938), with Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S., at 783. It also derives from a recognition that the States shoulder primary responsibility for the construction, maintenance, and policing of their highways, and that highway conditions may vary widely from State to State. See Bibb v. Navajo Freight Lines, 359 U. S. 520, 523-524 (1959); Barnwell Bros., supra, at 187. The District Court, without mentioning this evidence, suggested that language in Morris v. Duby, 274 U. S. 135, 144 (1927), and Buck v. Kuykendall, 267 U. S. 307, 315 (1925), established a principle “that for purposes of judicial review of state highway legislation, size restrictions might be deemed inherently tied to public safety....” 417 F. Supp., at 1360. The language relied upon does not go so far, and it antedates the era of the limited-access, four-lane divided highways involved in this case. Size restrictions, like other highway safety regulations, are entitled to a strong presumption of validity, but this presumption cannot justify a court in closing its eyes to uncontroverted evidence of record. The State’s failure to present any evidence to rebut appellants’ showing in itself sets this case apart from Barnwell Bros., see 303 U. S., at 196, and even from Bibb, see 359 U. S., at 525. The District Court said: “That compliance with Wisconsin regulations imposes added costs upon the plaintiffs is a fact of no material consequence.” 417 F. Supp., at 1361, citing Bibb, supra, at 526. In Bibb, the Court thought that the cost to carriers of installing the mudguards required by Illinois would not, in itself, require invalidation of the Illinois law. See 359 U. S., at 526. But the Court also made it clear that “[c]ost taken into consideration with other factors might be relevant in some cases to the issue of burden on commerce.” Ibid. The State contends that its regulations do not interfere with interlining as seriously as the Illinois law at Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Ginsburg delivered the opinion of the Court. Section 523(a)(6) of the Bankruptcy Code provides that a debt “for willful and malicious injury by the debtor to another” is not dischargeable. 11 U. S. C. § 523(a)(6). The question before us is whether a debt arising from a medical malpractice judgment, attributable to negligent or reckless conduct, falls within this statutory exception. We hold that it does not and that the debt is dischargeable. I In January 1983, petitioner Margaret Kawaauhau sought treatment from respondent Dr. Paul Geiger for a foot injury. Geiger examined Kawaauhau and admitted her to the hospital to attend to the risk of infection resulting from the injury. Although Geiger knew that intravenous penicillin would have been more effective, he prescribed oral penicillin, explaining in his testimony that he understood his patient wished to minimize the cost of her treatment. Geiger then departed on a business trip, leaving Kawaau-hau in the care of other physicians, who decided she should be - transferred to an infectious diseáse specialist. When Geiger returned, he canceled the transfer "and discontinued all antibiotics because'he believed the infection had subsided. Kawaauhau’s condition deteriorated over the next few days, requiring the amputation of her right leg below the knee. KawaauhaUj joined by her husband Solomon, sued Geiger for malpractice. After a trial, the jury found Geiger liable and awarded the Kawaauhaus approximately $355,000 in damages. Geiger, who carried no malpractice insurance, moved to Missouri, where his wages were garnished by the Kawaauhaus. Geiger then petitioned for bankruptcy. The Kawaauhaus requested the Bankruptcy Court to hold the malpractice judgment nondisehargeable on the ground that it was a debt “for willful and malicious injury” excepted from discharge by 11 U. S. C. § 523(a)(6). The Bankruptcy Court concluded that Geiger’s treatment fell far below the appropriate standard of care and therefore ranked as “willful and malicious.” Accordingly, the Bankruptcy Court held the debt nondisehargeable. In re Geiger, 172 B. R. 916, 922-923 (Bkrtcy. Ct. ED Mo. 1994). In an unpublished order, the District Court affirmed. App. to Pet. for Cert. A-18 to A-22. A three-judge panel of the Court of Appeals for the Eighth Circuit reversed, 93 F. 3d 443 (1996), and a divided en banc court adhered to the panel’s position, 113 F. 3d 848 (1997) (en banc). Section 523(a)(6)’s exemption from discharge, the en banc court held, is confined to debts “based on what the law has for generations called an intentional tort.” Id., at 852. On this view, a debt for malpractice, because it is based on conduct that is negligent or reckless, rather than intentional, remains dischargeable. The Eighth Circuit acknowledged that its interpretation of § 523(a)(6) diverged from previous holdings of the Sixth and Tenth Circuits. See id., at 853 (citing Perkins v. Scharffe, 817 F. 2d 392, 394 (CA6), cert. denied, 484 U. S. 853 (1987), and In re Franklin, 726 F. 2d 606, 610 (CA10 1984)). We granted certiorari to resolve this conflict, 521 U. S. 1153 (1997), and now affirm the Eighth Circuit’s judgment. II Section 523(a)(6) of the Bankruptcy Code provides: “(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— “(6) for willful and malicious injury by the debtor to another entity or to the property of another entity.” The Kawaauhaus urge that the malpractice award fits within this exception because Dr. Geiger intentionally rendered inadequate medical care to Margaret Kawaauhau that necessarily led to her injury. According to the Kawaauhaus, Geiger deliberately chose less effective treatment because he wanted to cut costs, all the while knowing that he was providing substandard care. Such conduct, the Kawaauhaus assert, meets the “willful and malicious” specification of § 528(a)(6). We confront this pivotal question concerning the scope of the “willful and malicious injury” exception: Does §523(a)(6)’s compass cover acts, done intentionally, that cause injury (as the Kawaauhaus urge), or only acts done with the actual intent to cause injury (as the Eighth Circuit ruled)? The words of the statute strongly support the Eighth Circuit’s reading. The word “willful” in (a)(6) modifies the word “injury,” indicating that nondisehargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury. Had Congress meant to exempt debts resulting from unintentionally inflicted injuries, it might have described instead “willful acts that cause injury.” Or, Congress might have selected an additional word or words, i. e., “reckless” or “negligent,” to modify “injury.” Moreover, as the Eighth Circuit observed, the (a)(6) formulation triggers in the lawyer’s mind the category “intentional torts,” as distinguished from negligent or reckless torts. Intentional torts generally require that the actor intend “the conse quences of an act,” not simply “the act itself.” Restatement (Second) of Torts § 8A, Comment a, p. 15 (1964) (emphasis added). The Kawaauhaus’ more encompassing interpretation could place within the excepted category a wide range of situations in which an act is intentional, but injury is unintended, i. e., neither desired nor in fact anticipated by the debtor. Every traffic accident stemming from an initial intentional act — for example, intentionally rotating the wheel of an automobile to make a left-hand turn without first checking oncoming traffic — could fit the description. See 113 F. 3d, at 852. A “knowing breach of contract” could also qualify. See ibid. A construction so broad would be incompatible with the “well-known” guide that exceptions to discharge “should be confined to those plainly expressed.” Gleason v. Thaw, 236 U. S. 558, 562 (1915). Furthermore, “we are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.” Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837 (1988). Reading § 523(a)(6) as the Kawaauhaus urge would obviate the need for § 523(a)(9), which specifically exempts debts “for death or personal injury caused by the debtor’s operation of a motor vehicle if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance.” 11 U. S. C. § 523(a)(9); see also §523(a)(12) (exempting debts for “malicious or reckless failure” to fulfill certain commitments owed to a federal depository institutions regulatory agency). The Kawaauhaus heavily rely on Tinker v. Colwell, 193 U. S. 473 (1904), which presented this question: Does an award of damages for “criminal conversation” survive bankruptcy under the 1898 Bankruptcy Act’s exception from discharge for judgments in civil actions for “ 'willful and malicious injuries to the person or property of another’ ”? Id., at 480. The Tinker Court held such an award a nondis-ehargeable debt. The Kawaauhaus feature certain statements in the Tinker opinion, in particular: “[An] act is willful ... in the sense that it is intentional and voluntary” even if performed “without any particular malice,” id., at 485; an act that “necessarily causes injury and is done intentionally, may be said to be done willfully and maliciously, so as to come within the [bankruptcy discharge] exception,” id., at 487. See also id., at 486 (the statute exempts from discharge liability for “‘a wrongful act, done intentionally, without just cause or excuse’ ”) (quoting from definition of malice in Bromage v. Prosser, 4 Barn. & Cress. 247, 107 Eng. Rep. 1051 (K. B. 1825)). The exposition in the Tinker opinion is less than crystalline. Counterbalancing the portions the Kawaauhaus emphasize, the Tinker Court repeatedly observed that the tort in question qualified in the common law as trespassory. Indeed, it ranked as “trespass vi et armis.” 193 U. S., at 482, 483. Criminal conversation, the Court noted, was an action akin to a master’s “action of trespass and assault ... for the battery of his servant,” id., at 482. Tinker thus placed criminal conversation solidly within the traditional intentional tort category, and we so confine its holding. That decision, we clarify, provides no warrant for departure from the current statutory instruction that, to be nondischargeable, the judgment debt must be “for willful and malicious injury.” Subsequent decisions of this Court are in accord with our construction. In McIntyre v. Kavanaugh, 242 U.S. 138 (1916), a broker “deprive[d] another of his property forever by deliberately disposing of it without semblance of authority.” Id., at 141. The Court held that this act constituted an intentional injury to property of another, bringing it within the discharge exception. But in Davis v. Aetna Ac ceptance Co., 293 U. S. 328 (1934), the Court explained that not every tort judgment for conversion is exempt from discharge. Negligent or reckless acts, the Court held, do not suffice to establish that a resulting injury is “wilful and malicious.” See id., at 332. Finally, the Kawaauhaus maintain that, as a policy matter, malpractice judgments should be excepted from discharge, at least when the debtor acted recklessly or carried no malpractice insurance. Congress, of course, may so decide. But unless and until Congress makes such a decision, we must follow the current direction § 523(a)(6) provides. * * * We hold that debts arising from recklessly or negligently inflicted injuries do not fall within the compass of § 523(a)(6). For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is Affirmed. The jury awarded Margaret Kawaauhau $203,040 in special damages •and $99,000 in general damages. In re Geiger, 172 B. R. 916, 919 (Bkrtcy. Ct. ED Mo. 1994). In addition, the jury awarded Solomon Kawaauhau $18,000 in general damages for loss of consortium and $35,000 for emotional distress. Ibid. Although the record is not clear on this point, it appears that Dr. Geiger was not required by state law to cany .medical malpractice insurance. See Tr. of Oral Arg. 19. The word “willful” is defined in Black’s Law Dictionary as “voluntary” or “intentional.” Black’s Law Dictionary 1434 (5th ed. 1979). Consistently, legislative reports note that the word “willful” in § 523(a)(6) means “deliberate or intentional.” See S. Rep. No. 95-989, p. 79 (1978); H. R. Rep. No. 95-595, p. 365 (1977). Sections 523(a)(9) and (12) were added to the Bankruptcy Code in 1984 and 1990 respectively. See Pub. L. 98-353, 98 Stat. 364 (1984), and Pub. L. 101-647, 104 Stat. 4865 (1990). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Me. Chief Justice Burgee delivered the opinion of the Court. In 1973, North Carolina enacted a statute which required, inter alia, all closed containers of apples sold, offered for sale, or shipped into the State to bear “no grade other than the applicable TJ. S. grade or standard.” N. C. Gen. Stat. § 106-189.1 (1973). In an action brought by the Washington State Apple Advertising Commission, a three-judge Federal District Court invalidated the statute insofar as it prohibited the display of Washington State apple grades on the ground that it unconstitutionally discriminated against interstate commerce. The specific questions presented on appeal are (a) whether the Commission had standing to bring this action; (b) if so, whether it satisfied the jurisdictional-amount requirement of 28 U. S. C. § 1331; and (c) whether the challenged North Carolina statute constitutes an unconstitutional burden on interstate commerce. (1) Washington State is the Nation's largest producer of apples, its crops accounting for approximately 30% of all apples grown domestically and nearly half of all apples shipped in closed containers in interstate commerce. As might be expected, the production and sale of apples on this scale is a multimillion dollar enterprise which plays a significant role in Washington's economy. Because of the importance of the apple industry to the State, its legislature has undertaken to protect and enhance the reputation of Washington apples by establishing a stringent, mandatory inspection program, administered by the State’s Department of Agriculture, which requires all apples shipped in interstate commerce to be tested under strict quality standards and graded accordingly. In all cases, the Washington State grades, which have gained substantial acceptance in the trade, are the equivalent of, or superior to, the comparable grades and standards adopted by the United States Department of Agriculture (USDA). Compliance with the Washington inspection scheme costs the State’s growers approximately $1 million each year. In addition to the inspection program, the state legislature has sought to enhance the market for Washington apples through the creation of a state agency, the Washington State Apple Advertising Commission, charged with the statutory duty of promoting and protecting the State’s apple industry. The Commission itself is composed of 13 Washington apple growers and dealers who are nominated and elected within electoral districts by their fellow growers and dealers. Wash. Rev. Code §§ 15.24.020, 15.24.030 (1974). Among its activities are the promotion of Washington apples in both domestic and foreign markets through advertising, market research and analysis, and public education, as well as scientific research into the uses, development, and improvement of apples. Its activities are financed entirely by assessments levied upon the apple industry, § 15.24.100; in the year during which this litigation began, these assessments totaled approximately $1.75 million. The assessments, while initially fixed by statute, can be increased only upon the majority vote of the apple growers themselves. § 15.24.090. In 1972, the North Carolina Board of Agriculture adopted an administrative regulation, unique in the 50 States, which in effect required all closed containers of apples shipped into or sold in the State to display either the applicable USDA grade or a notice indicating no classification. State grades were expressly prohibited. In addition to its obvious consequence — prohibiting the display of Washington State apple grades on containers of apples shipped into North Carolina, the regulation presented the Washington apple industry with a marketing problem of potentially nationwide significance. Washington apple growers annually ship in commerce approximately 40 million closed containers of apples, nearly 500,000 of which eventually find their way into North Carolina, stamped with the applicable Washington State variety and grade. It is the industry’s practice to purchase these containers preprinted with the various apple varieties and grades, prior to harvest. After these containers are filled with apples of the appropriate type and grade, a substantial portion of them are placed in cold-storage warehouses where the grade labels identify the product and facilitate its handling. These apples are then shipped as needed throughout the year; after February 1 of each year, they constitute approximately two-thirds of all apples sold in fresh markets in this country. Since the ultimate destination of these apples is unknown at the time they are placed in storage, compliance with North Carolina’s unique regulation would have required Washington growers to obliterate the printed labels on containers shipped to North Carolina, thus giving their product a damaged appearance. Alternatively, they could have changed their marketing practices to accommodate the needs of the North Carolina market, i. e., repack apples to be shipped to North Carolina in containers bearing only the USD A grade, and/or store the estimated portion of the harvest destined for that market in such special containers. As a last resort, they could discontinue the use of the preprinted containers entirely. None of these costly and less efficient options was very attractive to the industry. Moreover, in the event a number of other States followed North Carolina’s lead, the resultant inability to display the Washington grades could force the Washington growers to abandon the State’s expensive inspection and grading system which their customers had come to know and rely on over the 60-odd years of its existence. With these problems confronting the industry, the Washington State Apple Advertising Commission petitioned the North Carolina Board of Agriculture to amend its regulation to permit the display of state grades. An administrative hearing was held on the question but no relief was granted. Indeed, North Carolina hardened its position shortly thereafter by enacting the regulation into law: “All apples sold, offered for sale or shipped into this State in closed containers shall bear on the container, bag or other receptacle, no grade other than the applicable U. S. grade or standard or the marking ‘unclassified,’ ‘not graded’ or ‘grade not determined.’ ” N. C. Gen. Stat. § 106-189.1 (1973). Nonetheless, the Commission once again requested an exemption which would have permitted the Washington apple growers to display both the United States and the Washington State grades on their shipments to North Carolina. This request, too, was denied. Unsuccessful in its attempts to secure administrative relief, the Commission instituted this action challenging the constitutionality of the statute in the United States District Court for the Eastern District of North Carolina. Its complaint, which invoked the District Court’s jurisdiction under 28 U. S. C. §§ 1331 and 1343, sought a declaration that the statute violated, inter alia, the Commerce Clause of the United States Constitution, Art. I, § 8, cl. 3, insofar as it prohibited the display of Washington State grades, and prayed for a permanent injunction against its enforcement in this manner. A three-judge Federal District Court was convened pursuant to 28 U. S. C. §§ 2281 and 2284 to consider the Commission’s constitutional attack on the statute. After a hearing, the District Court granted the requested relief. 408 F. Supp. 857 (1976). At the outset, it held that the Commission had standing to challenge the statute both in its own right and on behalf of the Washington State growers and dealers, and that the $10,000 amount-in-controversy requirement of § 1331 had been satisfied. 408 F. Supp., at 858. Proceeding to the merits, the District Court found that the North Carolina statute, while neutral on its face, actually discriminated against Washington State growers and dealers in favor of their local counterparts. Id., at 860-861. This discrimination resulted from the fact that North Carolina, unlike Washington, had never established a grading and inspection system. Hence, the statute had no effect on the existing practices of North Carolina producers; they were still free to use the USDA grade or none at all. Washington growers and dealers, on the other hand, were forced to alter their long-established procedures, at substantial cost, or abandon the North Carolina market. The District Court then concluded that this discrimination against out-of-state competitors was not justified by the asserted local interest — the elimination of deception and confusion from the marketplace — arguably furthered by the statute. Indeed, it noted that the statute was “irrationally” drawn to accomplish that alleged goal since it permitted the marketing of closed containers of apples without any grade at all. Id., at 861-862. The court therefore held that the statute unconstitutionally discriminated against commerce, insofar as it affected the interstate shipment of Washington apples, and enjoined its application. This appeal followed and we postponed further consideration of the question of jurisdiction to the hearing of the case on the merits sub nom. Holshouser v. Washington State Apple Advertising Comm’n, 429 U. S. 814 (1976). (2) In this Court, as before, the North Carolina officials vigorously contest the Washington Commission’s standing to prosecute this action, either in its own right, or on behalf of that State’s apple industry which it purports to represent. At the outset, appellants maintain that the Commission lacks the “personal stake” in the outcome of this litigation essential to its invocation of federal-court jurisdiction. Baker v. Carr, 369 U. S. 186, 204 (1962). The Commission, they point out, is a state agency, not itself engaged in the production and sale of Washington apples or their shipment into North Carolina. Rather, its North Carolina activities are limited to the promotion of Washington apples in that market through advertising. Appellants contend that the challenged statute has no impact on that activity since it prohibits only the display of state apple grades on closed containers of apples. Indeed, since the statute imposed no restrictions on the advertisement of Washington apples or grades other than the labeling ban, which affects only those parties actually engaged in the apple trade, the Commission is said to be free to carry on the same activities that it engaged in prior to the regulatory program. Appellants therefore argue that the Commission suffers no injury, economic or otherwise, from the statute’s operation, and, as a result, cannot make out the “case or controversy” between itself and the appellants needed to establish standing in the constitutional sense. E. g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 260-264 (1977); Warth v. Seldin, 422 U. S. 490, 498-499 (1975). Moreover, appellants assert, the Commission cannot rely on the injuries which the statute allegedly inflicts individually or collectively on Washington apple growers and dealers in order to confer standing on itself. Those growers and dealers, appellants argue, are under no disabilities which prevent them from coming forward to protect their own rights if they are, in fact, injured by the statute’s operation. In any event, appellants contend that the Commission is not a proper representative of industry interests. Although this Court has recognized that an association may have standing to assert the claims of its members even where it has suffered no injury from the challenged activity, e. g., Warth v. Seldin, supra, at 511; National Motor Freight Assn. v. United States, 372 U. S. 246 (1963), the Commission is not a traditional voluntary membership organization such as a trade association, for it has no members at all. Thus, since the Commission has no members whose claims it might raise, and since it has suffered no “distinct and palpable injury” to itself, it can assert no more than an abstract concern for the well-being of the Washington apple industry as the basis for its standing. That type of interest, appellants argue, cannot “substitute for the concrete injury required by Art. III.” Simon v. Eastern Ky. Welfare Rights Org., 426 U. S. 26, 40 (1976). If the Commission were a voluntary membership organization — a typical trade association — its standing to bring this action as the representative of its constituents would be clear under prior decisions of this Court. In Warth v. Seldin, supra, we stated: “Even in the absence of injury to itself, an association may have standing solely as the representative of its members.... The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.... So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court’s jurisdiction.” 422 U. S., at 511. See also Simon v. Eastern Ky. Welfare Rights Org., supra, at 39-40; Meek v. Pittenger, 421 U. S. 349, 355-356, n. 5 (1975); Sierra Club v. Morton, 405 U. S. 727, 739 (1972); National Motor Freight Assn. v. United States, supra. We went on in Worth to elaborate on the type of relief that an association could properly pursue on behalf of its members: “[W]hether an association has standing to invoke the court’s remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper ease the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind.” 422 U. S., at 515. Thus we have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. The prerequisites to “assoeiational standing” described in Warth are clearly present here. The Commission’s complaint alleged, and the District Court found as a fact, that the North Carolina statute had caused some Washington apple growers and dealers (a) to obliterate Washington State grades from the large volume of closed containers destined for the North Carolina market at a cost ranging from 5 to 15 cents per carton; (b) to abandon the use of preprinted containers, thus diminishing the efficiency of their marketing operations; or (c) to lose accounts in North Carolina. Such injuries are direct and sufficient to establish the requisite “case or controversy” between Washington apple producers and appellants. Moreover, the Commission’s attempt to remedy these injuries and to secure the industry’s right to publicize its grading system is central to the Commission’s purpose of protecting and enhancing the market for Washington apples. Finally, neither the interstate commerce claim nor the request for declaratory and injunctive relief requires individualized proof and both are thus properly resolved in a group context. The only question presented, therefore, is whether, on this record, the Commission’s status as a state agency, rather than a traditional voluntary membership organization, precludes it from asserting the claims of the Washington apple growers and dealers who form its constituency. We think not. The Commission, while admittedly a state agency, for all practical purposes performs the functions of a traditional trade association representing the Washington apple industry. As previously noted, its purpose is the protection and promotion of the Washington apple industry; and, in the pursuit of that end, it has engaged in advertising, market research and analysis, public education campaigns, and scientific research. It thus serves a specialized segment of the State’s economic community which is the primary beneficiary of its activities, including the prosecution of this kind of litigation. Moreover, while the apple growers and dealers are not “members” of the Commission in the traditional trade association sense, they possess all of the indicia of membership in an organization. They alone elect the members of the Commission; they alone may serve on the Commission; they alone finance its activities, including the costs of this lawsuit, through assessments levied upon them. In a very real sense, therefore, the Commission represents the State’s growers and dealers and provides the means by which they express their collective views and protect their collective interests. Nor do we find it significant in determining whether the Commission may properly represent its constituency that "membership” is “compelled” in the form of mandatory assessments. Membership in a union, or its equivalent, is often required. Likewise, membership in a bar association, which may also be an agency of the State, is often a prerequisite to the practice of law. Yet in neither instance would it be reasonable to suggest that such an organization lacked standing to assert the claims of its constituents. Finally, we note that the interests of the Commission itself may be adversely affected by the outcome of this litigation. The annual assessments paid to the Commission are tied to the volume of apples grown and packaged as “Washington Apples.” In the event the North Carolina statute results in a contraction of the market for Washington apples or prevents any market expansion that might otherwise occur, it could reduce the amount of the assessments due the Commission and used to support its activities. This financial nexus between the interests of the Commission and its constituents coalesces with the other factors noted above to “assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U. S., at 204; see also NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 459-460 (1958). Under the circumstances presented here, it would exalt form over substance to differentiate between the Washington Commission and a traditional trade association representing the individual growers and dealers who collectively form its constituency. We therefore agree with the District Court that the Commission has standing to bring this action in a representational capacity. (3) We turn next to the appellants' claim that the Commission has failed to satisfy the $10,000 amount-in-controversy requirement of 28 U. S. C. § 1331. As to this, the appellants maintain that the Commission itself has not demonstrated that its right to be free of the restrictions imposed by the challenged statute is worth more than the requisite $10,000. Indeed, they argue that the Commission has made no real effort to do so, but has instead attempted to rely on the actual and threatened injury to the individual Washington apple growers and dealers upon whom the statute has a direct impact. This, they claim, it cannot do, for those growers and dealers are not parties to this litigation. Alternatively, appellants argue that even if the Commission can properly rely on the claims of the individual growers and dealers, it cannot establish the required jurisdictional amount without aggregating those claims. Such aggregation, they argue, is impermissible under this Court’s decisions in Snyder v. Harris, 394 U. S. 332 (1969), and Zahn v. International Paper Co., 414 U.S.291 (1973). Our determination that the Commission has standing to assert the rights of the individual growers and dealers in a representational capacity disposes of the appellants’ first contention. Obviously, if the Commission has standing to litigate the claims of its constituents, it may also rely on them to meet the requisite amount in controversy. Hence, we proceed to the question of whether those claims were sufficient to confer subject-matter jurisdiction on the District Court. In resolving this issue, we have found it unnecessary to reach the aggregation question posed by the appellants for it does not appear to us “to a legal certainty” that the claims of at least some of the individual growers and dealers will not amount to the required $10,000. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 288-289 (1938). In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation. E. g., McNutt v. General Motors Acceptance Corp., 298 U. S. 178, 181 (1936); Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U. S. 121, 126 (1915); Hunt v. New York Cotton Exchange, 205 U. S. 322, 336 (1907); 1 J. Moore, Federal Practice ¶¶ 0.95, 0.96 (2d ed. 1975); C. Wright, A Miller, & E. Cooper, Federal Practice & Procedure § 3708 (1976). Here, that object is the right of the individual Washington apple growers and dealers to conduct their business affairs in the North Carolina market free from the interference of the challenged statute. The value of that right is measured by the losses that will follow from the statute’s enforcement. McNutt, supra, at 181; Buck v. Gallagher, 307 U. S. 95, 100 (1939); Kroger Grocery & Baking Co. v. Lutz, 299 U. S. 300, 301 (1936); Packard v. Banton, 264 U. S. 140, 142 (1924). Here the record demonstrates that the growers and dealers have suffered and will continue to suffer losses of various types. For example, there is evidence supporting the District Court’s finding that individual growers and shippers lost accounts in North Carolina as a direct result of the statute. Obviously, those lost sales could lead to diminished profits. There is also evidence to support the finding that individual growers and dealers incurred substantial costs in complying with the statute. As previously noted, the statute caused some growers and dealers to manually obliterate the Washington grades from closed containers to be shipped to North Carolina at a cost of from 5 to 15 cents per carton. Other dealers decided to alter their marketing practices, not without cost, by repacking apples or abandoning the use of preprinted containers entirely, among other things. Such costs of compliance are properly considered in computing the amount in controversy. Buck v. Gallagher, supra; Packard v. Banton, supra; Allway Taxi, Inc. v. New York, 340 F. Supp. 1120 (SDNY), aff’d, 468 F. 2d 624 (CA2 1972). In addition, the statute deprived the growers and dealers of their rights to utilize most effectively the Washington State grades which, the record demonstrates, were of long standing and had gained wide acceptance in the trade. The competitive advantages thus lost could not be regained without incurring additional costs in the form of advertising, etc. Cf. Spock v. David, 502 F. 2d 953, 956 (CA3 1974), rev’d on other grounds, 424 U. S. 828 (1976). Moreover, since many apples eventually shipped to North Carolina will have already gone through the expensive inspection and grading procedure, the challenged statute will have the additional effect of causing growers and dealers to incur inspection costs unnecessarily. Both the substantial volume of sales in North Carolina— the record demonstrates that in 1974 alone, such sales were in excess of $2 million — and the continuing nature of the statute’s interference with the business affairs of the Commission’s constituents, preclude our saying “to a legal certainty,” on this record, that such losses and expenses will not, over time, if they have not done so already, amount to the requisite $10,000 for at least some of the individual growers and dealers. That is sufficient to sustain the District Court’s jurisdiction. The requirements of § 1331 are therefore met. (4) We turn finally to the appellants’ claim that the District Court erred in holding that the North Carolina statute violated the Commerce Clause insofar as it prohibited the display of Washington State grades on closed containers of apples shipped into the State. Appellants do not really contest the District Court’s determination that the challenged statute burdened the Washington apple industry by increasing its costs of doing business in the North Carolina market and causing it to lose accounts there. Rather, they maintain that any such burdens on the interstate sale of Washington apples were far outweighed by the local benefits flowing from what they contend was a valid exercise of North Carolina’s inherent police powers designed to protect its citizenry from fraud and deception in the marketing of apples. Prior to the statute’s enactment, appellants point out, apples from 13 different States were shipped into North Carolina for sale. Seven of those States, including the State of Washington, had their own grading systems which, while differing in their standards, used similar descriptive labels (e. g., fancy, extra fancy, etc.). This multiplicity of inconsistent state grades, as the District Court itself found, posed dangers of deception and confusion not only in the North Carolina market, but in the Nation as a whole. The North Carolina statute, appellants claim, was enacted to eliminate this source of deception and confusion by replacing the numerous state grades with a single uniform standard. Moreover, it is contended that North Carolina sought to accomplish this goal of uniformity in an evenhanded manner as evidenced by the fact that its statute applies to all apples sold in closed containers in the State without regard to their point of origin. Nonetheless, appellants argue that the District Court gave “scant attention” to the obvious benefits flowing from the challenged legislation and to the long line of decisions from this Court holding that the States possess “broad powers” to protect local purchasers from fraud and deception in the marketing of foodstuffs. E. g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 (1963); Pacific States Box & Basket Co. v. White, 296 U. S. 176 (1935); Corn Products Refining Co. v. Eddy, 249 U. S. 427 (1919). As the appellants properly point out, not every exercise of state authority imposing some burden on the free flow of commerce is invalid. E. g., Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U. S. 366, 371 (1976); Freeman v. Hewit, 329 U. S. 249, 252 (1946). Although the Commerce Clause acts as a limitation upon state power even without congressional implementation, e. g., Great Atlantic & Pacific Tea Co., supra, at 370-371; Freeman v. Hewit, supra, at 252; Cooley v. Board of Wardens, 12 How. 299 (1852), our opinions have long recognized that, “in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.” Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 767 (1945). Moreover, as appellants correctly note, that “residuum” is particularly strong when the State acts to protect its citizenry in matters pertaining to the sale of foodstuffs. Florida Lime & Avocado Growers, Inc., supra, at 146. By the same token, however, a finding that state legislation furthers matters of legitimate local concern, even in the health and consumer protection areas, does not end the inquiry. Such a view, we have noted, “would mean that the Commerce Clause of itself imposes no limitations on state action... save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods.” Dean Milk Co. v. Madison, 340 U. S. 349, 354 (1951). Rather, when such state legislation comes into conflict with the Commerce Clause's overriding requirement of a national “common market,” we are confronted with the task of effecting an accommodation of the competing national and local interests. Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970); Great Atlantic & Pacific Tea Co., supra, at 370-372. We turn to that task. As the District Court correctly found, the challenged statute has the practical effect of not only burdening interstate sales of Washington apples, but also discriminating against them. This discrimination takes various forms. The first, and most obvious, is the statute’s consequence of raising the costs of doing business in the North Carolina market for Washington apple growers and dealers, while leaving those of their North Carolina counterparts unaffected. As previously noted, this disparate effect results from the fact that North Carolina apple producers, unlike their Washington competitors, were not forced to alter their marketing practices in order to comply with the statute. They were still free to market their wares under the USDA grade or none at all as they had done prior to the statute’s enactment. Obviously, the increased costs imposed by the statute would tend to shield the local apple industry from the competition of Washington apple growers and dealers who are already at a competitive disadvantage because of their great distance from the North Carolina market. Second, the statute has the effect of stripping away from the Washington apple industry the competitive and economic advantages it has earned for itself through its expensive inspection and grading system. The record demonstrates that the Washington apple-grading system has gained nationwide acceptance in the apple trade. Indeed, it contains numerous affidavits from apple brokers and dealers located both inside and outside of North Carolina who state their preference, and that of their customers, for apples graded under the Washington, as opposed to the USDA, system because of the former’s greater consistency, its emphasis on color, and its supporting mandatory inspections. Once again, the statute had no similar impact on the North Carolina apple industry and thus operated to its benefit. Third, by prohibiting Washington growers and dealers from marketing apples under their State’s grades, the statute has a leveling effect which insidiously operates to the advantage of local apple producers. As noted earlier, the Washington State grades are equal or superior to the USDA grades in all corresponding categories. Hence, with free market forces at work, Washington sellers would normally enjoy a distinct market advantage vis-a-vis local producers in those categories where the Washington grade is superior. However, because of the statute’s operation, Washington apples which would otherwise qualify for and be sold under the superior Washington grades will now have to be marketed under their inferior USDA counterparts. Such “downgrading” offers the North Carolina apple industry the very sort of protection against competing out-of-state products that the Commerce Clause was designed to prohibit. At worst, it will have the effect of an embargo against those Washington apples in the superior grades as Washington dealers withhold them from the North Carolina market. At best, it will deprive Washington sellers of the market premium that such apples would otherwise command. Despite the statute’s facial neutrality, the Commission suggests that its discriminatory impact on interstate commerce was not an unintended byproduct and there are some indications in the record to that effect. The most glaring is the response of the North Carolina Agriculture Commissioner to the Commission’s request for an exemption following the statute’s passage in which he indicated that before he could support such an exemption, he would “want to have the sentiment from our apple producers since they were mainly responsible for this legislation being passed....” App. 21 (emphasis added). Moreover, we find it somewhat suspect that North Carolina singled out only closed containers of apples, the very means by which apples are transported in commerce, to effectuate the statute’s ostensible consumer protection purpose when apples are not generally sold at retail in their shipping containers. However, we need not ascribe an economic protection motive to the North Carolina Legislature to resolve this case; we conclude that the challenged statute cannot stand insofar as it prohibits the display of Washington State grades even if enacted for the declared purpose of protecting consumers from deception and fraud in the marketplace. When discrimination against commerce of the type we have found is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake. Dean Milk Co. v. Madison, 340 U. S., at 354. See also Great Atlantic & Pacific Tea Co., 424 U. S., at 373; Pike v. Bruce Church, Inc., 397 U. S., at 142; Polar Ice Cream & Creamery Co. v. Andrews, 375 U. S. 361, 375 n. 9 (1964); Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 524 (1935). North Carolina has failed to sustain that burden on both scores. The several States unquestionably possess a substantial interest in protecting their citizens from confusion and deception in the marketing of foodstuffs, but the challenged statute does remarkably little to further that laudable goal at least with respect to Washington apples and grades. The statute, as already noted, permits the marketing of closed containers of apples under no grades at all. Such a result can hardly be thought to eliminate the problems of deception and confusion created by the multiplicity of differing state grades; indeed, it magnifies them by depriving purchasers of all information concerning the quality of the contents of closed apple containers. Moreover, although the statute is ostensibly a consumer protection measure, it directs its primary efforts, not at the consuming public at large, but at apple wholesalers and brokers who are the principal purchasers of closed containers of apples. And those individuals are presumably the most knowledgeable individuals in this area. Since the statute does nothing at all to purify the flow of information at the retail level, it does little to protect consumers against the problems it was designed to eliminate. Finally, we note that any potential for confusion and deception created by the Washington grades was not of the type that led to the statute’s enactment. Since Washington grades are in all cases equal or superior to their USDA counterparts, they could only “deceive’’ or “confuse” a consumer to his benefit, hardly a harmful result. In addition, it appears that nondiscriminatory alternatives to the outright ban of Washington State grades are readily available. For example, North Carolina could effectuate its goal by permitting out-of-state growers to utilize state grades only if they also marked their shipments with the applicable USDA label. In that case, the USDA grade would serve as a benchmark against which the consumer could evaluate the quality of the various state grades. If this alternative was for some reason inadequate to eradicate problems caused by state grades inferior to those adopted by the USDA, North Carolina might consider banning those state grades which, unlike Washington’s, could not be demonstrated to be equal or superior to the corresponding USDA categories. Con-cededly, even in this latter instance, some potential for “confusion” might persist. However, it is the type of “confusion" that the national interest in the free flow of goods between the States demands be tolerated. The judgment of the District Court is Affirmed. Mr. Justice Rehnquist took no part in the consideration or decision of the case. Section 1331 provides in pertinent part: “ (a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs... The North Carolina regulation, as amended, provides in pertinent part: “(6) Apple containers must show the applicable U. S. Grade on the principal display panel or marked ‘Unclassified/ ‘Not Graded/ or ‘Grade Not Determined.’ State grades shall not be shown.” § 3-24.5 (6), Rules, Regulations, Definitions and Standards of the North Carolina Department of Agriculture. Under Washington law, the Commission is a corporation and is specifically granted the power to sue and be sued. Wash. Rev. Code §15.24.070 (8) (1974). In this regard, it adopted the ruling of the single District Judge who had previously denied appellants’ motion to dismiss the complaint brought on the same grounds. App. 51-58. That judge had found it unnecessary to determine whether jurisdiction was also proper under 28 U. S. C. § 1343 in view of his determination that jurisdiction had been established under §1331. App. 57 n. 2. As an alternative ground for its holding,'the District Court found that the statute would have constituted an undue burden on commerce even if it had been neutral and nondiscriminatory in its impact. Pike v. Bruce Church, Inc., 397 U. S. 137 (1970). 408 F. Supp., at 862 n. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

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