PUBLIC POLICY-WHO SHOULD MAKE IT IN AMERICA'S OLIGARCHY?

For html document:http://www.law.msu.edu/lawrev/98-4/maloy.htm


Richard H.W. Maloy*

TABLE OF CONTENTS

INTRODUCTION
I. PUBLIC POLICY DEFINED
A. "Policy" Distinguished
B. Public Opinion Distinguished
C. Public Interest Distinguished
II. THE SUPREME COURT'S PRONOUNCEMENTS
A. The Architects
B. The Legislatures
C. The Courts
1.Making Public Policy
2. Abrogating Public Policy
3. Policing Public Policy
D. Public Policy's Relationship to Other Sources of Decision
1. The Constitution
a. The First Amendment
b. Full Faith and Credit Clause
c. The Contract Clause
d. The Equal Protection Clause
e. The Property Clause
2. The Common Law
3. Comity
4. Other Public Policies
E. Public Policy's Duration
III. WHO SHOULD MAKE NATIONAL POLICY?
IV. CONGRESS
V. CONSTITUTION
VI. THE PRESIDENT
VII. THE SUPREME COURT
CONCLUSION
APPENDIX

INTRODUCTION

As these words are being written Congress has just received Kenneth Starr's report about President Clinton. The stock market is catapulting from one high to another low. Asia is in the throes of an economic crises, to say nothing of North Korea's lobbing missiles across Japan, and terrorists threatening to destroy whatever and with whomever they disagree. Russia cannot seem to find a leader or the value of its ruble, and though the extent of its trade with the United States about equals that of The Netherlands, its insecurity is intimidating American investors. Latin America is looking apprehensive. Thank heaven for Mark McGwire and Sammy Sosa.1

These are PROBLEMS. They may pale into insignificance, however, when they are compared to the problems this country is sure to face when trying to take a stand about certain bedrock issues that are facing our people. Consider abortion, same sex marriages, the cloning of human beings, the minimum age for a murder charge, the privatization of social security, physician-assisted suicide, a new form of taxing income, a new form of taxing estates and gifts, privatization of the post office, the regulation of H.M.O.'s, the parameters of the personal sexual lives of United States Presidents, and voyeurism on the internet, just to mention a few domestic matters about which we may need to develop public policies. Public policies are not limited to domestic concerns. Before a nation can have and coordinate foreign policy it must have an identifiable public policy. Nuclear power is just one example. Wolfgang H. Reinicke, an economist with the World Bank, recently said that "public policy will have to take on a global aspect. We have to establish a public policy framework that's equivalent to this dynamism." 2

A question presents itself as to who will make the public policy to deal with these issues about which there is so much controversy. The Supreme Court has told us that the people in their constitutions 3 and by their legislative bodies4 make public policy.5 Only in the absence of such expression of the popular may the courts make public policy.6 Assuming that public policy is for the common good, the question of just who determines what is for the public good must be addressed. The ostensible answer to this question is simple: the creator of public policy makes that determination. The problem with this answer, is that it begs another question: what if the creator is incapable of determining the "common good?" A further question arises as to whether in a country as diverse as America, can be such thing as a "common good," or are there many common goods?

This article deals with what the United States Supreme Court has written about public policy on both the national and state level. The Court should revisit what various Justices over the years have written about public policy on the national level. The time has come for the Supreme Court to analyze whether the legislative branch should continue to be the arm of government that has primary responsibility for the making of public policy. Before it does so, however, the Court must precisely define what is meant by the term "public policy." This article offers a definition for the Court's consideration. After a brief analysis of the form of government which prevails in the United States, the article concludes that the making of public policy, as the Supreme Court has fashioned it, is not suitable to that form of government.

I. PUBLIC POLICY DEFINED

The Supreme Court has not rendered a precise definition of public policy. In fact, Justice Brown said it was "impossible to define with accuracy."7 Other Justices have described it in similar terms: "vague,"8 "variable,"9 "a very uncertain thing."10 In particular, Justice Gray said that "no fixed rule can be given by which to determine what is public policy."11 English jurists shared this opinion.12

While no clear definition has been rendered by the Court, a meaning can be discerned from the cases. Public policy is a policy13 for the public welfare-the best interest of the populace14 as adopted and pursued by a government.15 When the Court equated "private morals" with "public welfare",16 it has generally been in the realm of honesty,17 as honesty impacts upon the public interests.18 At times the Court has equated "public morals" with the need for decency and lack of obscenity.19 Public policy is often used as a source of authority for rules of decision.20 As authority for rules of decision it joins other sources, 21 e.g. (1) constitutions, (2) statutes, (3) rules of procedure, (4) agency regulations, (5) the common law, (6) equity jurisprudence, (7) comity, and (8) precedent.22 It is not the practice of the Court to note that applicable public policy is the authority for its decision,23 but this conclusion is inescapable.24 An often overlooked result of using public policy as authority for a rule of decision is that it locks that court into a stare decisis vice, unless released from it by a higher court, or a change in the proclaimed public policy.25

Rather than attempting a definition of public policy, the Justices appear to be content with voicing generalities, often with little more elucidation than Anthony Patch's "intellectual 'There.'"26 Understatement has made its appearance in some Supreme judicial Court opinions.27 Justice Oliver Wendall Holmes said that when one renders consideration to the United States, if any part of it is contrary to public policy, all of it is tainted.28 The first Justice John Marshall Harlan said that a litigant's right to rely on it can be waived.29 Justice Stevens acknowledges that race no longer remains relevant to the formation of public policy.30 Chief Justice Rehnquist said that in crafting the Court's qualified immunity doctrine its members have considered public policy implications, but the Chief Justice did not say what those considerations were, nor where the Justices found them.31 At times members of the Court who dissent find public policy pronouncements in the majority opinion, where none were specifically mentioned.32

Justice Holmes came close to furnishing a definition when he wrote: "the very meaning of public policy is the interest of others than the parties and that interest is not to be at the mercy of the defendant alone."33 Justice Brennan wrote that it involves "large numbers of persons" and calls "for a delicate balancing of competing considerations."34 Despite public policy being argued to the Court in 843 Briefs between the October 1989 Term and the October 1998 Term,35 the Court mentioned it only 56 times.36 Many cases merely proclaim that the action under consideration either complied with public policy or it did not, without the slightest description of the term.37 The early cases often failed to address public policy in the majority opinion, even though it was argued by the parties.38 This pattern has continued through the present era.39

Even the usually articulate Justice Douglas referred to the strong public policy of keeping grand jury proceedings secret without giving a reason as to why secrecy is required.40 The second Justice John Marshall Harlan simply opined that the Cuban takeover of American owned sugar interests was against the "public policy of this country and its constituent States," with no indication of what that public policy was.41 Where members of Congress were sued, under the Freedom of Information Act, to obtain documents pertaining to underground atomic explosions,42 the Supreme Court ruled that, in the interest of national defense and foreign policy, no disclosure would be permitted. Justice Byron White wrote that "[t]here is a public policy involved in this claim of privilege for this advisory opinion,"43 but he did articulate the actual public policy. Justice Powell acknowledged that "considerations of public policy, the importance of which should be confirmed either by reference to the common law or, more likely, our constitutional heritage and structure."44 With all due deference to these great jurists, their words lack the clarity which the subject demands.45

A. "Policy" Distinguished

Obviously, not every "policy" adopted by a governmental entity is "public policy." Public policy is a policy the objective of which is the common good; it is a policy which its maker believes will serve the people well. "Policy," as such, is a much broader term, and includes public policy. Justice John M. Harlan demonstrated the distinction in Barr v. Matteo which dealt with the policy of the United States Navy furnishing an "absolute privilege" against liability to those who defame others in the discharge of their official duties.46 Justice Brennan, in dissent, observed that there was "deep-rooted policy of the common law generally to provide redress against defamation."47 He found fault with the majority because he thought that it had expanded the common law privilege of executive immunity, which was one of those "imponderables" left to the legislative.48 In other words, the Navy "policy" would benefit only the Navy. Broadening that policy to include the public weal, according to Brennan, would be a legislative function.

At times the Justices have differed over whether some facet of government is public policy or merely an inherence or "structural assumption" of our scheme of government. Thus Justice Byron White, referred to the concept of protecting public officials in the fulfillment of their official duties, as "public policy,"49 whereas Justice Powell referred to it in terms of the "'inherent or structural' assumptions of our scheme of government."50

The policy of a State, such as the admissions policy for students at a state university,51 may have many of the hallmarks of a public policy, and at times the only reason it is not considered public policy is the failure of the legislative body or the courts to call it such. As we have seen, foreign policy is different from public policy.52

B. Public Opinion Distinguished

Public policy is not the same as public opinion, except possibly when the people speak through their constitutions.53 Then it has a paternalistic aspect. It is not what the populous thinks is good for them, or most of them, but what their rulers think is good for the majority of them. When the students paraded Miss Liberty in Tienamen Square in 1989 they were voicing the public opinion of the majority of the Chinese students, but the government officials held an entirely different opinion, and their opinion was the public policy of China at that time, rather than that of the students.54 After the Supreme Court decided Brown v. Board of Education,55 a majority of the people in the United States and four Justices of the Supreme Court thought that busing was wrong, but the public policy of the nation was to the effect that busing was in the best interest of the nation as a whole.56 After Roe v. Wade,57 and Doe v. Bolton,58 there were many people in this nation (and still are), who believe that abortion is not only wrong, but a sin;59 the public policy of the nation, however, is that a woman has a choice as to whether or not to abort a pregnancy. The Court recently ruled that there was no "protective function" privilege for the Secret Service.60 If it established a public policy, certainly there was considerable divergent thinking on both sides of the question. If the Court rules on same sex marriages,61 the right to clone human beings, the privatization of social security, the minimum age at which a person may be tried for murder, a new method of taxing income, physician assisted suicide, voyeurism on the Internet, and a myriad of other controversial matters now being discussed by the American people, there will be similar divergence, not only among those who take opposite sides of each question, but among those on the same side.

If the people amend the federal constitution to require a balanced federal budget, there no doubt will be some disagreement. But even "grass roots" public opinion is not synonymous with unanimity.62

C. Public Interest Distinguished

Though public policy usually deals with a matter in which the public is interested,63 and policy actually serves that interest,64 it is distinguishable from "public interest."65 As an example, there is a public policy of needing to protect public officials who are required to exercise their discretion,66 and there is a "related public interest in encouraging the vigorous exercise of official authority."67 Additionally, there is a related "public interest in truth and fairness."68 This is not to say that the Justices have never used the term "public interest" to refer to a requirement that the public be protected. It has, but within a narrow aegis.69 Usually "public interest" is assigned either one of two meanings, neither of which is a "policy," but both of which may involve a policy. First, "public interest" can refer to a situation in which the public is so interested as to require a free discussion of it,70 or that it be protected.71 Secondly, "public interest" can refer to a standard by which administrative,72 or judicial acts73 are judged.

II. THE SUPREME COURT'S PRONOUNCEMENTS

A. The Architects

As stated above, the Supreme Court has said that the people, through their constitutions and legislative bodies make public policy.74 The state legislatures make public policy for the states,75 and Congress makes it for the nation.76 This paper is primarily concerned with national public policy.77

The courts may make public policy, but only when the people through their constitutions and statutes have not done so.78 As will be seen later in this paper,79 this limitation on the courts' power to make public policy does not prevent them from making some very important public policies, in the absence of conflicting legislation.80 In addition, the courts have the very important function of making a determination as to whether the legislative body, in attempting to make the public policy in question, exceeded its constitutional authority,81 and in given cases whether public policy has been violated.82

Justice William O. Douglas has said that the President of the United States can make public policy.83

The Court has recognized that treaty makers can fashion public policy.84 Just as administrative agencies can make policy for the government it serves,85 administrative agencies, through their regulations, can make public policy.86 It has been opined that when the courts are called upon to decide whether agency-created public policy has been violated they should consider "the relevant economic and other facts which the administrative agency charged with regulation of the transaction [t]here involved is peculiarly well equipped to marshal and initially to evaluate."87 In addition to agency personnel making public policy, "perform functions that go to the heart of representative government," when they review the public policy performed by others.88 In a per curiam opinion, the Court has stated that the agency merely "enforces" the public policy established by Congress.89

Public policy requires that agencies feel free to ask for legislation which will terminate or avoid adverse contentions and litigation.90

Justice Breyer has opined that jurors should not, "like legislators or judges," create public policy.91 Has Congress implied that parties may make public policy?92 Has Justice Brennan implied that arbitrators may make public policy?93

At times the Justices have been less than clear in their pronouncements. Justice Fuller said that: "[t]he public policy of the Government is to be found in the Constitution and the laws, and the course of administration and decision."94 Justice Gray, rather than approaching the inquiry from the source of public policy, analyzed how it was governed.95 Justice Reed placed "laws" and "legal precedents" on an equal footing: "Public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests."96 In the same case, however, he said that Congress, and not the courts, make federal public policy;97 but also that public policy is made through "long governmental practice or statutory enactments."98 Justice Burton was satisfied with saying that "some governmental declaration" was sufficient to establish the existence of the public policy.99 Justice Edward D. White was guilty of the same loose wording in referring to the source of public policy as the "lawmaking power."100 Justice Thurgood Marshall indicated that "governmental actions and decisions" can be the source of public policy.101 Many other indefinite statements as to just who makes public policy may be found in Supreme Court opinions.102

B. The Legislatures103

Justice Byron White has said that public policy constitutes the social, economic, or political goals of a statute and regulations.104 On occasion legislation specifically proclaims that its provisions constitute public policy and what that public policy provides.105 Justice Hughes said that when public policy does not appear on the face of a statute the ordinary rules of statutory construction apply.106 More often, however, one must discern the public policy from the wording of the statute, its legislative history,107 or the courts, by interpretation, must declare it.108 Justice Edward White had to "deduce" public policy form the "text" and "context" of a statute, and was greatly "fortified by obvious considerations of public policy."109 All too often the statute merely refers to "public policy" without defining it;110 and when that happens the courts have no alternative but to make the declaration, utilizing its tools of statutory construction.111

The legislature may amend public policy by the passage of a statute.112 Justice Roberts has stated that if a legislative body wishes to alter the public policy established by a prior body, it need only repeal the statute.113

C. The Courts

1. Making Public Policy

The limitation on the courts' public policy making ability has been expressed by many Supreme Court Justices. Chief Justice Salmon P. Chase wrote:

[t]his court can know nothing of public policy except from the Constitution and the laws, and the course of administration and decision. It has no legislative powers. It cannot amend or modify any legislative acts. It cannot examine questions as expedient or inexpedient, as politic or nonpolitic. Considerations of that sort must, in general, be addressed to the legislature. Questions of policy determined there are concluded here.114

Justice Lurton wrote: "[a]rguments based upon suggestions of public policy not recognized in the patent laws are not relevant."115 Justice Peckham wrote: "when the lawmaking power speaks upon a particular subject, over which it has constitutional power to legislate, public policy in such a case is what the statute enacts."116 The first Justice John Marshall Harlan wrote:

[t]he courts have nothing to do with the wisdom or policy of an act of Congress. Their duty is to ascertain the will of Congress, and if the statute embodying the expression of that will is constitutional, the courts must respect it. They have no function to declare a public policy, nor to amend legislative enactments.117

Justice Hughes wrote:

The legislature, provided it acts within its constitutional authority, is the arbiter of the public policy of the State. While the court, unaided by legislative declaration and applying the principles of the common law, may uphold or condemn contracts in the light of what is conceived to be public policy, its determination as a rule for future action must yield to the legislative will when expressed in accordance with organic law.118

He added:

[t]he legislature, being familiar with local conditions, is, primarily, the judge of the necessity of such enactments. The mere fact that a court may differ with the legislature in its views of public policy, or that judges may hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference, unless the act in question is unmistakably and palpably in excess of legislative powers.119

Justice Cardozo wrote: "[i]t is not the function of a court to determine whether the public policy that finds expression in legislation . . . is well or ill conceived."120

This limitation on the courts' public policy-making authority has been interpreted so punctiliously that the Justices have said that they have no power to review legislative pronouncements of public policy. Chief Justice Salmon P. Chase wrote in 1866 that as long as the pronouncements of public policy made by the legislative bodies in the form of statutes remain unrepealed or unmodified they constitute the public policy on that subject. No court could say that those statutes were contradictory to public policy, for that would be a contradiction in terms. Likewise a court has no power to comment upon their expediency or propriety.121 Justice Miller in 1871 wrote: "[w]hen a decision on that point, whether holding such contract valid or void, is made upon the general principles by which courts determined whether a consideration is good or bad on principles of public policy, the decision is one we are not authorized to review."122

There are, however, major areas of concern in which the legislative bodies have not proclaimed public policy, and the courts have created it. Every time the courts promulgate rules of court, (especially rules of evidence), they make public policy.123

When interpreting public policy the courts often, for all intents and purposes, make public policy.124 The Court has developed a "rule of reason" with which to fill in the interstices of the anti-trust statutes.125 The United States Constitution provides for trial by jury,126 but nowhere does it specify the number of jurors required. The courts have determined that a jury composed of twelve persons is a "constitutional jury";127 and that the waiver of such a right was not a violation of the applicable public policy.128 In a milieu requiring the exercise of reasonable care, caution and maritime skill, the Court, in the absence of a statute, held a contract exempting one party from that duty as violative of public policy.129 One public policy may be used by the courts to create other public policies.130

2. Abrogating Public Policy

The most often cited ground upon which a court may abrogate statutory public policy or public policy formulated by a court, is that either the legislative body or the court exceeded its constitutional authority.131 A specific declaration of public policy in the statute will not save it from constitutional invalidity.132 In an opinion written about public policy, Justice Cardozo used language which indicates that he may have thought that the courts should look to the connection between the objective of the public policy proclaimed and the means used to achieve it.133

A second ground that the courts may use to strike down a state's public policy is that there is a conflict with federal public policy.134

The Court has used a potpourri of federal "interests", "policies, and actions" as reasons for striking down a State's public policy.135

3. Policing Public Policy

In addition to a court's interpretation of public policy, as a general proposition, courts are also faced with cases in which it is claimed that public policy is being violated. At times this testing can get very close to judicial legislation. 136

Since early in the history of this country it has been the public policy that

every depository of the public money should be held to a strict accountability. Not only that he should exercise the highest degree of vigilance, but that 'he should keep safely' the moneys which come to his hands. Any relaxation of this condition would open the door to frauds, which might be practised with impunity.137

During the Civil War the Army of the Confederacy forcibly seized or destroyed property of the Union in the hands of a public officer. The United States Supreme Court held that such forcible seizure did not violate public policy.138

Though Chief Justice Burger said that constitutions and laws manifest public policy,139 at times legislation really encompasses no public policy. While not creating new public policy, in such situations, courts are at liberty to balance existing public policies (discerned from other sources), against the purpose of a statute.140 Justice Blackmun opined that: "the question of public policy is ultimately one for resolution by the courts."141 He placed a limitation on such judicial power: "[s]uch a public policy, however, must be well defined and dominant, and is to be ascertained 'by reference to the laws and legal precedents and not from general considerations of supposed public interests.'"142 Justice Byron White ascribed to this position.143 These statements raise some yet unanswered questions.144

D. Public Policy's Relationship to Other Sources of Decision

1. The Constitution

A Constitution is really a formal expression of the public policy which prevailed at the time of its adoption.145 Other public policies may arise, which conflict with those provisions. When that happens it is problematic which will prevail.146

a. The First Amendment

The Supreme Court has recognized the need for an open discussion of public policy.147 Statements criticizing public policies and the implementation of them are protected by the First Amendment.148

With regard to the establishment portion of the First Amendment, Justice Scalia has written that "'[i]t has radical implications for our public policy to suggest that neutral laws are invalid whenever hypothetical observers may-even reasonably-confuse an incidental benefit to religion with state endorsement.'"149

b. Full Faith and Credit Clause

Section 1 of Article IV of the United States Constitution provides that full faith and credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State. To implement that constitutional provision, Congress, in May, 1790 enacted a statute.150 Neither the Constitution nor the Statute require the courts of one state to apply the law of another state which conflicts with the forums's public policy.151 From the writings of Oliver Wendall Holmes and Louis Brandeis, one can conclude that if there is a conflict between the public policy of two states, the public policy of the forum prevails. In an early case Justice Holmes dealt with the situation of a married woman who executed a guaranty subjecting her separate property to the payment of her husband's debts. The courts of her domicile, Texas, found that such a contract violated the state's public policy. Without specifically discussing the impact of public policy upon the full faith and credit clause, Holmes, by dictum, said that the agreement would be enforceable in Illinois regardless of the "policy" of the domiciliary state.152 Justice Brandeis recognized that "the full faith and credit clause does not require the enforcement of every right conferred by a statute of another State. There is room for some play of conflicting policies."153 This view was echoed by Justice Black. 154

Chief Justice Edward White cautioned that the full faith and credit clause cannot be overruled under the mere "guise" of public policy.155 The public policy argument for applying the law of the forum is bolstered in the case of real property by the usual conflict of laws rule that applies the law of the situs of real property in cases involving that type of property;156 as well as the law of corporate origin.157 Assignments for the benefit of creditors whether or not recognized by the forum will generally be recognized, but not to the extent that such a creditor arrangement violates the forum's public policy.158

In a very recent case, decided January 13, 1998, the Court held that the Full Faith and Credit Clause did not require the enforcement in Missouri of an agreed Michigan judgment barring a former employee from testifying against his former employer in a Missouri case involving persons who were not parties to the Michigan action. 159 Justice Ginsburg, writing for a unanimous Court, said: "[a] court may be guided by the forum State's 'public policy' in determining the law applicable to a controversy. But our decisions support no roving 'public policy exception' to the full faith and credit due judgments."160

c. The Contract Clause

Section 10, Article I of the United States Constitution states that "[n]o state shall . . . pass any . . . law impairing the obligations of contracts."161 The prohibition against the courts' interference with contracts has been called "paramount" public policy, 162 and the "highest" public policy. 163 A fact intensive approach has been offered as a valid reason for using public policy to strike down contractual arrangements which are on their face consensual. 164 There has not been unanimity, however, as to the relative strength of these two sources of rules of decision. 165 Justice O'Connor appears to take the readily defensible position that constitutional provisions are, in essence, expressions of public policy. 166

d. The Equal Protection Clause

There are certain laws which are enacted for "broad and ambitious purposes" (i.e. public policy reasons), which will justify incidental disadvantages imposed. 167

The Court has considered the effect of the Equal Protection Clause in connection with a State public policy dealing with the licensing of occupations. In two cases, one dealing with state police and the other with school teachers, the Court held that there was no Equal Protection violation since the State public policy represents the choice, and right, of the people to be governed by their citizen peers-the right to govern is reserved to citizens.168 A later decision of the Court169 found that the Equal Protection Clause was violated by a similar State public policy, but on a different ground. In that case the occupation was that of notaries public.170 The Court found that unlike the occupations in prior cases, those of a notary public "hardly implicate responsibilities that go to the heart of representative government."171

e. The Property Clause

The Property Clause of the federal Constitution (Art. 4, § 3, cl. 2), "does not authorize 'an exercise of a general control over public policy in a State', however, it does permit 'an exercise of the complete power which Congress has over particular public property entrusted to it.'"172

2. The Common Law

It is probably beyond cavil that public policy may alter the common law,173 but what the Court has not determined is the extent to which that alteration may be made. The Court would prefer to find that no conflict exists.174

In the Eighteenth Century, Congress, in order to assist in the development of railroads, which were very important to the development of this court, adopted a public policy of making certain rules which were contrary to some of the strictures of the common law; and the railroads took full advantage of this special dispensation.175

Any conflict between the common law and public policy can be avoided by using the law of the forum.176

When considering equity's impact upon public policy, or vice versa, it appears that public policy has the upper hand. In 1860, Justice Wayne said that there was a public policy limitation on chancery court's protection of charities.177 In 1927 Justice Butler said that equity will not be used to "thwart public policy."178 Justice Minton, in 1953 noted, a possible clash between public policy and equity, with public policy prevailing.179 More recently Justice Scalia has said that estoppel cannot override a public policy established by Congress.180 Justice Brennan's observation that courts of equity go much further in giving and withholding relief in furtherance of public policy than they are accustomed to doing when only private interests are involved, is probably not in conflict with the other views expressed.181

3. Comity

The courts of one state or nation generally under the principle of comity will recognize the laws of another state or nation as a matter of deference and respect. Comity will yield to public policy;182 the sovereign's limitation on the bringing of actions, however, usually is observed by other sovereigns.183

If the public policy of a foreign nation is not raised, the United States courts will not consider it.184

4. Other Public Policies

Just as there is a hierarchy in other policies created by governments,185 there is a hierarchy of public policies.186 Justice Byron White has said that whenever there are conflicts of public policies there is room for doubt on each side,187 but Justice Brandeis said that: "the room left for the play of conflicting [public] policies is a narrow one."188

In the United States, the States as well as the federal government may make public policy.189 In the case of conflict between the two policies, the federal prevails.190 Public policy sometimes places a restraint upon individual citizens, and at other times it compels them to action.191 This restraint and compulsion are not always of statutory origin.192 Sometimes it is expanded from the area originally encompassed into new, albeit related, fields of influence.193

Preemption by prior Congressional legislation has prevented state public policy from being promulgated.194

When the public policy of the States conflict with each other, the Court from the earliest times has tried to harmonize them.195

Legislatively created public policy prevails over judicially created;196 That created by Congress prevails over "general" public policy.197 There are exceptions to these rules.198

In addition to priorities among public policies, a given public policy may have to compete with another legal doctrine,199 or with a state statute.200

The Supreme Court has not given any rules for the resolution of clashes between public policies. The clash which most often arises is between freedom of contract and the public interest. This, however, may not be a true conflict of public policies.201

E. Public Policy's Duration

The Supreme Court has not proclaimed any time limit on public policy, perhaps because more exist. Justice Roberts has stated the obvious when he proclaimed that a legislative body may adopt a policy regarding contracts in respect of the public interest for a term longer than the life of the current session.202 Some of the public policies of the nation or a state remain static. Some, depending upon what the maker of public policy thinks is best for the populace, are constantly subject to change. In 1897, Justice Gray, quoting the Supreme Court of Iowa, wrote: "'Public policy is variable; the very reverse of that which is the policy of the public at one time may become public policy at another.'"203 Until the Thirteenth Amendment was ratified in 1865, slavery was the public policy of all states of the union; but since then, not only slavery, but also involuntary servitude have violated the public policy of the United States.204 Until 1913 it was the public policy of the country that the federal government could not tax income. With the ratification of the sixteenth Amendment in 1913, public policy changed. At the beginning of 1920 it was public policy that allowed for the manufacture, sale and transport of intoxicating liquors, but did not allow women the vote. By the end of that year 'radical' changes had been made in the public policy of the country, if not in the opinions held by all people.205 In 1933, with the ratification of the Twenty-First Amendment, prohibition was no longer the public policy of the country, repealing it expressed the opinion of the nation.206 If Congress dedicates land to a public use it declares a public policy though it can easily change that policy by devoting the land to other uses.207

Though H.L. Mencken would probably not agree,208 change is simply a healthy manifestation of governments keeping up with the times in which they govern.209

III. WHO SHOULD MAKE NATIONAL PUBLIC POLICY?

Before we enter a new millennium the Supreme Court should consider the question who should make public policy-Congress or the courts?

We do need not only the public policies that we have,210 but since public policies constitute authority for rules of decision, we will also need public policies concerning the many new issues which confront this nation as it enters the 21st Century.211

As to this question, obviously the people will always have the right to make public policy through their constitutions, even should they chose not to exercise that right.212 While the state legislatures may still be equipped to proclaim state public policies,213 on the federal level, Congress no longer has the capability of dealing with the problems referred to in this paper.

One might ask: what is wrong with the people making public policies through their elected legislators? After all have we not, in our nation's past, dealt with perplexing problems like protective tariffs, slavery, immigration, womens' right to vote, public consumption of alcohol, child labor, First Amendment rights, the forty-hours workweek, "equal, but separate" education, affirmative action, laissez faire competition or anti-trust legislation, the right to smoke in public places, and the privatization of prisons? Of course an affirmative answer must be given to those questions. The problem is that this country is no longer the same nation, nor is the world the same place as they were when those public policies were adopted.214 It is, moreover, an oligarchy in the purest sense of the word, whose legislators are not equipped to structure a public policy on issues over which the public is so sharply divided.

IV. CONGRESS

This country was founded on a concept of government that is entirely different from what it is at present. Our original democracy was in some ways a loose confederation of recently independent sovereigns, but in many respects it was a unified, cohesive whole, that was stronger than the sum of its parts. It was founded, moreover, on the concept, since outmoded, that its rulers would have the common good uppermost in mind as they performed their governmental functions, because the people elected them to govern.215

Alexis De Tocqueville, in the early 18th Century, recognized that Americans felt the strength of their franchise power. "The Americans believe that in each state supreme power should emanate directly from the people, but once this power has been constituted, they can hardly conceive any limits to it. They freely recognize that it has the right to do everything."216

As the country grew in strength, in many ways it revealed the difficulties of forging a democracy in a region so vast and so sprawling as that which became the United States of America. By mid-century those inherent weaknesses, which are so pronounced today, began to make their appearance. Historian Bernard DeVoto described them in these words:

They were an inchoate people between two stages of the endless American process of becoming a nation, with their heads down and their eyes resolutely closed to the desperate realities which a few years would force them to confront with the deadliest of awakenings. They were a people without unity and with only a spasmodic mutual awareness, at this moment being pulled farther asunder by the centrifugal expansion of the frontier and the equal explosiveness of the developing industry-both of which would turn back again in the nation-making curve, but not for a long while yet. A people going blithely into a war of conquest whose certain ending few tried to foresee. A people divided by racial differences, sectional cleavages, cultural antipathies, an enormous disparity of assumption, expectation, hope and philosophy. A people united only by a political system and tradition which were nearing the deadly test, by habits of democratic association-and by a common readiness and reality of feeling which few took conscious thought of. That commonality of feeling, in its simplicity, sincerity, and high potential, is the one feasible way into them. 217

The War, which DeVoto said few tried to foresee, succeeded in politically uniting what had become two nations. The new nation had one seat of government, actually as well as figuratively. By the end of the Civil War President Lincoln was able to place the center of power in Washington.218 It has never left.

When our nation was founded, the legislative branch was considered the logical body to formulate public policy, for those elected officials were "ultimately responsible to the voters"; hence Congress has the right to fix national public policy.219 Under modern methods of electing members of Congress, where the average cost of getting elected exceeds the national budget at the time The Federalist was drafted, it is not realistic to even contemplate that those representatives will have the common good of society in mind. It is not cynicism to believe that the Congress must be beholden to those who elect them, be it their local constituencies or special economic interests.220 How can a legislature so constituted and so functioning, consider the common good? Rousseau said that "[n]othing is more dangerous than the influence of private interests on public affairs."221 John Stuart Mill said that the natural tendency of representative government is toward collective mediocrity.222

When Congress proclaims public policy, often it does not even pretend to speak the mind of its constituents, much less of the nation at large. Congress says what, in its opinion (considered or otherwise), is best for a myriad of different constituencies, regardless of the opinions held either by the constituents or the nation.223 John Stuart Mill recognized this situation when he wrote:

[l]ooking at democracy in the way in which it is commonly conceived, as the rule of the numerical majority, it is surely possible that the ruling power may be under the dominion of sectional or class interests, pointing to conduct different from that which would be dictated by impartial regard for the interest of all . . . . Between these two classes, on many questions, there is complete opposition of apparent interest.224

While America proclaims to be a democracy, it is an oligarchy, in which a selected few rule.225 The concept of democracies and oligarchies has not changed in almost 2,500 years.226 250 million Americans are ruled by approximately 500 people - .000002 of the population, namely Congress and the President. The American oligarchy has many of the hallmarks of a democracy, not the least of which is a Constitution, but then oligarchies have constitutions.227 In fact, it is rare that a government is entirely democratic or oligarchic;228 it is usually a hybrid.229 The United States is such a hybrid.

Though Aristotle preferred a democracy to an oligarchy,230 the basis of his preference was purely doctrinaire. In practice a democracy cannot achieve what should be the highest objective of that highest form of science-political science-the good of its subjects, in other words "the common interest," or justice.231 In Aristotle's mind justice was "equality"; but immediately he posed the question, equality of what?232 If the state exists for anything other than its own preservation, it cannot assure equality to all.233 "The problem is a universal one, and equally concerns all forms of government, true as well as false; for, although perverted forms with a view to their own interests may adopt this policy,234 those which seek the common interest do so likewise."235 Later thinkers have agreed.236 Oliver Wendall Holmes, while not adhering to a monarchial form of government, expressed a truism about any representative form, i.e. the few must act for the many.237 Is the American oligarchy not afflicted with the same weakness?

V. CONSTITUTIONS

When the federal constitution was adopted in 1787 the country had a total population of four million people. Unfamiliar with a federal government, and somewhat suspicious of it, they felt more comfortable with their state governments. As the country grew in population and its economy grew in importance, the founders' concept of laissez faire gave way to government involvement in business, and an attendant awareness of the importance of public policies. Consequently the federal government took on greater importance, culminating in an almost totalitarian state which existed during World War II.238 Though government involvement has remained to the present time when the federal constitution is amended, it is the will of the people that amends it, even though only a small percentage of the people choose to exercise the right to do so.239

VI. THE PRESIDENT

If the legislative branch of an oligarchical government cannot make public policy for the nation due to its factional content, might it be well to consider another branch, the executive, for that role? There is obviously an inherent danger in having an executive determine public policy. Evidence Hitler's attempted extermination of Jews.240 Evidence Hirohito's decision to bomb Pearl Harbor. Even in non-totalitarian forms of government executives may become devious,241 and may become so the center of scrutiny that they are unable to formulate a dispassionate policy for the common good.242 The fact remains, however, that someone or some group of persons must be responsible for making such determinations from time to time, and the executive's time in office is limited.243 There is nothing in the federal constitution which requires that the legislative branches of government make public policy. The United States Supreme Court established that rule early in our history, despite what the English jurists said about the matter.244 It is time for the Court to re-think the question.245

This is not a particularly good time to suggest that the President of the United States should make national public policy. The fact remains, however, that the Office of President of the United States can be a very powerful one depending upon its occupant.246 While to a certain extent dependent upon the good-will of special interest groups, the influence of those groups is certainly more removed than is that vis-a-vis those who work on Capitol Hill.

VII. THE SUPREME COURT

One commentator has written that "Chief Justice Charles Evans Hughes once said that the 'Constitution is what the judges say it is,' but he could have broadened that to include all law. And law, of course, is one expression of public policy."247 Perhaps the United States Supreme Court should make public policy. Former President Richard M. Nixon acknowledged that he was challenged by the Court.248

Professors Timothy R. Johnson and Andrew D. Martin say that the United States Supreme Court influences public opinion, but that it is conditional. By that they mean that when the Court initially rules on a matter, the public usually accepts that ruling as the final edict on the subject.249 If the Court "alters, overturns, or reiterates its initial policy choices in subsequent cases, the Court's ability to affect public attitudes is "muted."250

If the United States Supreme Court were the only maker of public policy perhaps it would render a more precise description of what it really is, and not be as prone to offer public policy as a reason for its decisions without discussing the other alternatives.

Professors Paulsen and Sovern have said that public policy has given the Court a substitute for thinking, it has shifted responsibility for a decision, and its impact has a greater intensity than "our law."251 The tendency of the United States Supreme Court to paint with a broad brush when it come to public policy is not just of recent origin.252

CONCLUSION

This nation has long had public policies and it always will.253 Our Supreme Court has written about the subject, however, in a rather detached, seldom harmonious, manner. It has told us that the people make public policy through their constitutions and their legislative bodies, and that the court may make it only if the legislature has not spoken. It is time for a clear definition from the Supreme Court as to the meaning of public policy and a re-evaluation as to whether, at least on the national level, the legislative body-Congress- merits the role of exclusive maker of public policy. Perhaps it should be replaced, or at least made to share the primary responsibility with another branch of the federal government.

It is obvious that the people will always have the right, through their constitutions on the state and national level to make public policy. The people, through their state legislatures, should have the right to make public policy on the state level.254 As to national public policy, however, due to the fractionalization of Congress, the President and the United States Supreme Court should share that right with Congress. The President and the Court should not have to wait to fill in the interstices when the need for a national public policy arises but Congress has not yet spoken.

APPENDIX

Some Examples of Public Policy Which Have Been Recognized by the United States Supreme Court

The basic function of public policy is to protect the populace at large from being damaged by the individuals who compose it.255 Regulation of activity is supposed to prevent that damage.256 The policy established may not always accomplish that objective, but those who impose it believe that it does, whether or not it is accepted by a majority of the people affected. Some of the public policies of the nation or a state may remain static, some, depending upon what the people value, are constantly subject to change.

Some of those public policies which have been recognized by the Supreme Court are:

Protection of the People

Bankruptcy257

Civil Rights258

Contracts259

Dead People260

Education261

Fiduciary Relationships262

Health, Education & Welfare263

Minors264

Privacy265

Protection from Government266

Protection of the Government

Currency267

Government Agencies268

Government Officials269

Harm270

Judicial System271

"Kickbacks" prohibited272

Purity of Government273

Sound Government274

Sovereign Immunity275

Tax Collection276

Wartime Allegiance277

Property

Attachments278

Fiduciary Accounts279

Free Use280

Mineral Lands281

Patents282

Trade Marks283


Business and the Professions

Banking284

Corporations285

Integration of the Bar286

Licensing287

Restraint of Trade288

Stock Exchanges289

Labor Relations

Collective Bargaining290

Employee Protection291

Fraud in Job Procurement292

Minimum Wage293

Union Membership294

Commerce

Bills of Lading295

Public and Private Carriers296

Tariff Regulation297

Insurance

Commission of Suicide298

Right to Insure299

Litigation

End to Litigation300

Federal/State Relationship301

Jurisdiction302

Orderly Procedures303

Punctuality304

Repetitious Litigation305

Statutes of limitation306

Wrongdoer's Entitlement to Damages307

Venue308and Criminal Proceedings

Bail bonds309

Contraband310

Counsel311

Entrapment312

Exion313tradit

Informer Protection314

Sentencing315



* Assistant Professor of Law, St. Thomas University School of Law. The author acknowledges and wishes to express his gratitude for the research assistance provided by Cynthia Lynne.

1. As Walt Whitman wrote:

That coursing on, whate'er men's speculations, amid the changing schools, theologies, philosophies, amid the bawling presentations new and old,

The round earth's silent vital laws, facts, modes, continue.

Walt Whitman, The Calming Thought of All, in Leaves of Grass 527 (Comprehensive Reader's ed., Harold W. Blodgett & Sculley Bradley eds., 1965).

2. Karen Pennar, Two Steps Forward, One Step Back, Business Week, Aug. 31, 1998, at 119; see also Consolidated Edison Co. of N.Y., Inc. v. Serv. Comm'n of N.Y., 447 U.S. 530, 530 (1980).

3. See Morton Salt Co. v. G.S. Suppiger Co., 314 U.S. 488, 492 (1942) (concerning the United States Constitution); United States v. Dubilier Condenser Corp., 289 U.S. 178, 189 (1933); Hartford Fire Ins. Co. v. Chicago, Milwaukee & St. Paul Ry. Co., 175 U.S. 91, 100 (1897) (concerning state constitutions); St. Louis Mining & Milling Co. v. Montana Mining Co., 171 U.S. 650, 655 (1898).

4. See Hartford Fire Ins. Co., 175 U.S. at 100; Northwestern Mut. Life Ins. Co. v. Johnson, 254 U.S. 96, 100 (1920). In Brown v. Pro Football, Inc., 518 U.S. 231, 236 (1996) Justice Breyer repeated (quoting Duplex Printing Press Co. v. Deering, 254 U.S. 443, 485 (1921) (Brandeis, J., dissenting)) that "Congress, not the judges was the body which should declare what public policy in regard to the industrial struggle demands."

5. See Chief Justice Burger in Bob Jones University v. United States, 461 U.S. 574, 594-95 (1983) (holding that constitutions and law manifest public policy).

6. See Hartford Fire Ins. Co., 175 U.S. at 100.

7. Justice Brown in Pope Mfg. Co. v. Gormully, 144 U.S. 224, 233 (1892), wrote: "It is impossible to define with accuracy what is meant by that public policy for an interference and violation of which a contract may be declared invalid."

8. Justice Story in Vidal v. Girard's Executors, 43 U.S. (2 How.) 127, 198 (1844) said the definition of public policy, if inquired beyond certain limits, "will be found to be one of great vagueness and uncertainty." In Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356 (1931) Justice Butler said that "there is no fixed rule by which to determine what contracts are repugnant to it." Justice Reed in Muschany v. United States, 324 U.S. 49, 66 (1945) said: "[a]s the term "public policy" is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy." Justice Black in Still v. Norfolk & Western Ry. Co., 368 U.S. 35, 39 (1961), referred to the Court's opinion in Minneapolis, St. Paul & S. Ste. Marie Ry. Co. v. Rock, 279 U.S. 410 (1929), as applying "vague notions of public policy."

9. Justice Butler in Steele v. Drummond, 275 U.S. 199, 205 (1927) said: "[t]he meaning of the phrase 'public policy' is vague and variable. Justice Sutherland in Patton v. United States, 281 U.S. 276, 306 (1930) said that "the theory of public policy embodies a doctrine of vague and variable quality."

10. See the first Justice John Marshall Harlan's dissent in Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 104 (1911) (Harlan, J., concurring in part and dissenting in part).

11. Justice Gray in Hartford Fire Ins. Co. v. Chicago, Milwaukee & St. Paul Ry. Co., 175 U.S. 91, 106 (1897).

12. Burroughs, J. in Richardson v. Mellish, 2 Bing. 229, 252 (D.C. 1824) wrote: "I for one protest . . . against arguing too strongly upon public policy;-it is a very unruly horse, and when once you get astride it you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail." In Missouri Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 143 (1964), Justice Stewart observed that "finally, all else failing, it is argued that . . . public policy [should be relied upon]" almost in acknowledgment of Burroughs' didactic.

13. One dictionary gives a definition of policy as "a course of action adopted and pursued by a government." Random House Webster's College Dictionary 1045 (1991). The French language has no word for policy, per se, but their regle de conduite means the same thing. See Beryl T. Atkins et. al., Collins Robert French-English English-French Dictionary 599 (4th ed. 1995).

14. The best interest of the populace is at times referred to as "in the public interest." The element of being for the public good, or public interest distinguishes public policy from policy. Stare decisis is a "policy that courts will stand by a precedent, and not disturb a settled point." Black's Law Dictionary 1577 (4th rev. ed. 1968). While such policy may indirectly benefit the general populous, its direct object is to furnish stability to the administration of justice. Res Judicata is a policy similar to stare decisis. See infra note 25 and accompanying text. At times the public policy affords individual rights, which overlap with those given the populace, as in the case of anti-trust laws. See United States v. Borden Co., 347 U.S. 514, 518-19 (1954).

15. The state legislatures make public policy for their states. See International Union, UMWA v. Bagwell, 512 U.S. 821, 825 (1994) (noting Virginia's public policy disfavoring private settlement civil contempt fines; Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 250-51, 266 (1994) (holding Hawaii's whistleblower policy not preempted by federal statute); Nichols v. United States, 511 U.S. 738, 748 n.12 (1994) (noting it is a matter of state public policy whether indigent defendants may receive counsel for misdemeanor charges); Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 336 (1986) (noting Puerto Rico's public policy of promoting tourism); New York v. Ferber, 458 U.S. 747, 757 (1982) (noting New York's public policy of protecting children from sexual exploitation); Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 673, 695 (1982) (noting Florida's public policy protecting treasure travel); New York Tel. Co. v. New York Dep't of Labor, 440 U.S. 519, 535 (1979) (noting New York's public purposes underlying state unemployment compensation laws); Penn Cent. Transp. Co. v. New York, 438 U.S. 104, 127 (1978) (noting that a prior case held "that a state statute that substantially furthers important public policies may . . . amount to a 'taking'." (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922))); Stanton v. Stanton, 429 U.S. 501, 504 n.4 (1977) (per curiam) (noting Utah's public policy regarding the age of majority for child-support purposes); American Radio Ass'n, AFL-CIO v. Mobile S.S. Ass'n, Inc., 419 U.S. 215, 229-30 (1974) (noting ability of a state to enjoin picketing to enforce public policy); Kernan v. American Dredging Co., 355 U.S. 426, 431 (1958) (noting public policy favoring compensation in the event of injury or death during industrial employment reflected in Workmen's Compensation Acts); Rice v. Sioux City Mem'l Park Cemetery, Inc., 349 U.S. 70, 76 (1955) (noting Iowa's public policy disfavoring racial discrimination of interment of remains); Steele v. General Mills, Inc., 329 U.S. 433, 440 (1947) (noting Texas' public policy regarding railroad and carrier rates). At times Congress will pass an Act to facilitate the public policy of the States as proclaimed by their legislatures. See Schwegman Bros. v. Calvert Distillers, 341 U.S. 384, 392-93 (1951). Counties and municipalities may have their own public policies. See Pembauer v. City of Cincinnati, 475 U.S. 469, 475 (1986). Territories may also have public policies. See Unemployment Compensation Comm'n of Alaska v. Aragon, 329 U.S. 143, 154 (1946).

16. See Trist v. Child, 88 U.S. 441, 452 (1874). Public policy often affects private interests which usually do not lose their need for private (as compared with public) enforcement. See Justice Scalia's pronouncement in Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding Orn Dock Co., 514 U.S. 122, 132 (1955) ("What the Director must establish here is such a clear and distinctive responsibility for employee compensation as to overcome the universal assumption that 'person adversely affected or aggrieved' leaves private interests (even those favored by public policy) to be litigated by private parties").

17. Thus Justice Field in Woodstock Iron Co. v. Richmond & D. Extension Co., 129 U.S. 643, 655-56 (1889), said that a contract in which an employee agreed to activity not in the best interest of his employer was void as against public policy because it was "immoral in its conception and corrupting in its tendency." Justice Brennan in Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 307 (1985) wrote that "public policy considerations 'undergirded' the in pari delicto defense," and out of fraud no action arises. Justice Stevens has written that: "public policy . . . requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible." See Brisco v. La Hue, 460 U.S. 325, 335 (1983) (declining to carve out an exception to the rule of immunity in cases of alleged perjury of police officer witnesses).

18. In Marshall v. B. & O. R.R., 57 U.S. 3124, 334 (1853), Justice Grier wrote: "[i]t is an undoubted principle of the common law, that it will not lend its aid to enforce a contract . . . which is inconsistent with sound morals or public policy; or which tends to corrupt or contaminate, by improper infinences, the integrity of our social or political institutions." In Cowell v. Springs, Co., 100 U.S. 55 (1879), the issue involved whether the right of a grantor of land had reverter rights without prior re-entry or a demand. See Cowell, 100 U.S. at 56-57. The reverter clause provided that the property would revert upon the grantee's sale of intoxicating liquors on the premises. Id. at 56. The Court, in upholding the reverter, observed that the provision was not against public policy, but on the contrary, was imposed in the interest of public health and morality. Id. at 57. In Oscanyan v. Arms Co., 261 U.S. 277 (1880), Justice Field wrote that a contract which gives a foreign council a commission for the sale of arms to his country is "so vicious in its character and tendency, and so repugnant to all our notions of right and morality that it can have no countenance in the courts of the United States." See also McMullen v. Hoffman, 174 U.S. 639 (1899).

19. Justice Reed wrote in Winters v. People of New York, 333 U.S. 507, 515 (1948) that: "[a]cts of gross and open indecency or obscenity, injurious to public morals, are indictable at common law, as violative of the public policy that requires from the offender retribution for acts that flaunt accepted standards of conduct." Justice Roberts came close to referring to morality when in his dissent in Sorrells v. United States, 287 U.S. 435, 455 (1932) he wrote that "[p]ublic policy forbids the sacrifice of decency." Cf. United States v. Russell, 411 U.S. 423, 437 (1973). Chief Justice Burger spoke of public policy in connection with "humanitarian impulses." See Schick v. Reed, 419 U.S. 256, 266 (1974). Justice William O. Douglas wrote that: "[w]ithin the limits of her political power North Carolina may . . . enforce her own policy regarding the marriage relation-an institution more basic in our civilization than any other. But society also has an interest in the avoidance of polygamous marriages . . . ." See Williams v. North Carolina, 317 U.S. 287, 303 (1942).

20. "Rules of decision" in the sense that it was used in Section 34 of the Judiciary Act of 1789-orders rendered in litigated matters. See 28 U.S.C. § 1652 (1998). Public policy's use as a source of authority for a rule of decision is not a sine qua non. As was made clear in Pinter v. Dehl, 486 U.S. 622, 633 (1988), before a certain defense was allowed public policy implications must be carefully considered. Justice Blackmun in Basic, Inc. v. Levinson, 485 U.S. 224, 245 (1988), premised presumptions in law, in part on public policy. When the Court sees a way of avoiding any consideration of public policy, however, it will do so. See Justice Thomas's majority opinion in United States v. Mezzanatto, 513 U.S. 196, 207 (1995): "We need not decide whether and under what circumstances substantial 'public policy' interests may permit the inference that Congress intended to override the presumption of waivability, for in this case there is no basis for concluding that waiver will interfere with the Rules' goal of encouraging plea bargaining."

21. Chief Justice Burger in Foley v. Connelie, 435 U.S. 291, 299 (1978) equates public policy with law. A change in public policy from the time a contract was entered into to the time performance was sought to be enforced may serve as a valid defense in a specific performance action. See, e.g., SEC v. Central-Ill. Sec. Corp., 338 U.S. 96, 137 (1949). It was brought out in Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 574 (1985), that former President Ford, while he attended Yale Law School, learned that "public policy took precedence over law." Reference to this fact is not intended as approval of the proposition. At times, however, the courts confuse public policies with other authorities for rules of decision. See Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U.S. 378, 399 (1990) (affirming a state court's ruling that the matter was one of evidence rather than public policy).

22. "Precedent" refers to rules of decision previously rendered by courts, based upon the same, or essentially the same facts. "Common law" or "equity jurisprudence" refers to general principles of law. If the rule of decision were entered by a higher court in the forum's jurisdiction, the precedent is binding; all other such rulings constitute persuasive precedent. Justice Blackmun has cautioned that public policy will, at times, override "general rules of law." See Ohio v. Roberts, 448 U.S. 56, 64 (1980). Chief Justice Hughes, in Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374 (1940), came close to acknowledging that public policy is authority for rules of decision when he wrote that "[q]uestions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination." Justice Clark in Linkletter v. Walker, 381 U.S. 618, 627 (1965), quoted Justice Hughes' words, as did Justice Thurgood Marshall in United States v. Estate of Donnelly, 397 U.S. 286, 292 (1970). Justice Blackmun came equally close when he listed "fairness, public policy, and probability, as well as judicial economy" as grounds for decisions in Basic, Inc. v. Levinson, 485 U.S. 224, 245 (1988); see also United States Dep't of Justice v. Landanco, 508 U.S. 165, 174 (1993).

23. Meese v. Keene, 481 U.S. 465, 478 (1987) is a clear example of the principle. The case concerned the constitutionality, vel non, of the Foreign Agents' Registration Act, which prohibited the dissemination of "political propaganda." Keene, 481 U.S. at 467-68. The Court (per Justice Stevens), said that "the Act's reporting and disclosure requirements are expressly conditioned upon a finding that speech on behalf of a foreign principal has political or public- policy content." Id. at 478. In that case the public policy was that of protecting the nation from harm, hence the Act was found to be constitutional.

24. See, e.g., Sun Oil Co. v. Wortman, 486 U.S. 717, 728 (1988). In attempting to prove that in a conflict of laws context the rule that place of contracting governs validity of the contract is not a "subsisting tradition", Justice Scalia listed three "escape devices." Sun Oil Co., 486 U.S. at 728 n.2. These were: "public policy, characterization of an issue as procedural, and the rule that the law of the place of performance governs matters of performance." Id. Professor Cavers listed public policy among his "avenues of escape." David F. Cavers, Critique of the Choice-of-Law Problem, 47 Harv. L. Rev. 173, 183 (1933).

25. See supra notes 201-08 and accompanying text.

26. F. Scott Fitzgerald in The Beautiful and Damned describes for us the hero of the tale, Anthony Patch:

In 1913, when Anthony Patch was twenty-five, two years were already gone since irony, the Holy Ghost of this later day, had, theoretically at least, descended upon him. Irony was the final polish of the shoe, the ultimate dab of the clothes-brush, a sort of intellectual "There!"-yet at the brink of this story he has as yet gone no further than the conscious stage.

F. Scott Fitzgerald, The Beautiful and Damned 3 (1922).

27. Justice Byron White wrote in Branzburg v. Hayes, 408 U.S. 665, 696 (1972) that "agreements to conceal information relevant to commission of crime have very little to recommend them from the standpoint of public policy."

28. See Hazelton v. Sheckels, 202 U.S. 71, 78 (1906).

29. See Page v. Burnstine, 102 U.S. 664, 669 (1880).

30. See Shaw v. Hunt, 517 U.S. 899, 925 (1996) (Sevens, J., dissenting). Justice O'Connor, moreover, acknowledged that racial discrimination in schools is against the public policy of the nation. See Allen v. Wright, 468 U.S. 737, 771 (1984).

31. See Crawford v. Britton, 523 U.S. 574 (1998).

32. See Wygant v. Jackson Bd. of Educ. 476 U.S. 267 (1986) (holding that extending preferential protection against layoffs of school board employees because of their race violated the 14th Amendment, Justice Thurgood Marshall wrote:"[t]he narrow question presented by this case, if indeed we proceed to the merits, offers no occasion for the Court to issue broad proclamations of public policy concerning the controversial issue of affirmative action.") Id. at 311-12 (Marshall, J., dissenting). The majority opinion, written by Justice Stevens did not mention public policy. Justice Rehnquist found public policy reasons for what he thought the Court should do in Wyatt v. Cole, 504 U.S. 158, 179-80 (1992), where the Court decided that there was no qualified immunity in favor of private defendants charged with 42 U.S.C. § 1983 liability for invoking state replevin, garnishment and attachment statutes later declared unconstitutional. Justice Rehnquist saw a public policy reason for protecting creditors who properly use a statute which they have no way of knowing will subsequently be invalidated, despite no mention of public policy in the majority opinion written by Justice O'Connor. In Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998), Justice Thomas found that the majority opinion implied that nonconforming contracts are void as against public policy, rather than voidable, though the majority opinion did not mention public policy, per se. In Schall v. Martin, 467 U.S. 253, 281 (1984), the only reference to public policy in the majority opinion was to disagree with the dissent's position on the matter.

33. Beasley v. Texas & Pac. Ry. Co., 191 U.S. 492, 498 (1903). Justice Holmes also wrote: "[t]he very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but nonetheless traceable to views of public policy in the last analysis." Oliver W. Holmes, The Common Law 35-36 (1881).

34. Owen v. City of Independence, 445 U.S. 622, 648 (1980).

35. See Westlaw database SCT Briefs DA(aft 9/1989 & bef 9/1998) & (public policy)

36. See Westlaw database SCT DA(aft 9/1989 & bef 9/1998) & SY(court) & LE ("Public Policy")

37. See Vimar Seguros v. M/V Sky Reefer, 515 U.S. 528, 532 (1995); Maryland v. Craig, 497 U.S. 836, 848-50, 853 (1990); Labors' Health & Welfare Trust v. Advanced Lightweight Concrete Co., 484 U.S. 539, 549 (1988); Malley v. Briggs, 475 U.S. 335, (1986); McDonald v. Smith, 472 U.S. 479, 483 (1985); Bankamerica Corp. v. United States, 462 U.S. 122, 132 (1983); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 391 (1982); Hutchinson v. Proxmire, 443 U.S. 111, 128 (1979); Trans-American Freight Lines, Inc. v. Brada Miller Freight Sys., Inc, 423 U.S. 28, 34 (1975); United States v. Key, 397 U.S. 322, 324 (1970); Shenker v. B. & O. R. Co., 374 U.S. 1 (1963); International Ass'n of Machinists v. Street, 367 U.S. 740, 772 (1961); Parr v. United States, 363 U.S. 370, 389 (1960); United States v. Proctor & Gamble Co., 356 U.S. 677 (1958); Comstock v. Group of Inst. Investors, 335 U.S. 211, 229 (1948); Anderson v. McClemens Pottery Co., 328 U.S. 680, 686 (1946); McDonald v. Commissioner of Internal Revenue, 323 U.S. 57, 63 (1944); Perin v. Carey, 65 U.S. (24 How.) 465, 501 (1860); The Santissima Trinidad, 20 U.S. (7 Wheat.) 283, 336 (1822); Matthews v. Zane, 20 U.S. (7 Wheat.) 164, 210 (1822); The Thomas Gibbons, 12 U.S. (8 Cranch) 421, 429 (1814).

38. In several early cases, though counsel would assert public policy in their arguments to the Court, none of the Justices took up the cudgel. See Justice Holmes' opinion in Union Trust v. Grossman, 245 U.S. 412 (1918), and Justice Brandeis' opinion in Bothwell v. Buckbee-Means Co., 275 U.S. 274 (1927); Adams v. Church, 193 U.S. 510 (1904), and Hartman v. Butterfield Lumber Co., 199 U.S. 335 (1905); Justice Day's opinions in Pennsylvania R. Co. v. Hughes, 191 U.S. 477 (1903), Justice Brewer's opinion in Hyer v. Richmond Traction Co., 168 U.S. 471 (1897); Justice Campbell's opinion in McDonogh's Executors v. Murdock, 56 U.S. 367 (15 How.) (1853); Justice McLean's opinion in Goesele v. Bimeler, 55 U.S. 589 (14 How.) (1852); Justice Wayne's opinion in Oldfield v. Marriott, 51 U.S. (10 How.) 146 (1850), Justice Nelson's opinion in New Jersey Steam Nav. Co. v. Merchants' Bank, 47 U.S. (6 How.) 344 (1848); Justice Taney's opinion in The Charles River Bridge case, 36 U.S. (11 Pet.) 420 (1837); Justice Pitney's opinion in Coppage v. Gansis, 236 U.S. 1 (1915); Justice McKena's opinion in German Alliance Ins. Co. v. Lewis, 233 U.S. 389 (1914).

39. See ABF Freight System, Inc. v. NLRB, 510 U.S. 317 (1994); Pension Benefit Guaranty Corp. v. LVT Corp., 496 U.S. 633 (1990); Crandon v. United States, 494 U.S. 152 (1990); Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22 (1988); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220 (1987); Meese v. Keene, 481 U.S. 465 (1987); United States v. Paradise, 480 U.S. 149 (1987); Midlantic Nat. Bank v. New Jersey Dep't. of Envtl., 474 U.S. 494 (1986); Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981); Ferri v. Ackerman, 444 U.S. 193 (1979); Detroit Edison Co. v. N.L.R.B., 440 U.S. 301 (1979); Wheeler v. Barbera, 417 U.S. 402 (1975); Gateway Coal Co. v. United Mine Workers, 414 U.S. 368 (1974); Butz v. Glover Livestock Comm'n Co., Inc., 411 U.S. 182 (1973); Roe v. Wade, 410 U.S. 113 (1973); United States v. Kras, 409 U.S. 434 (1973); Washington v. G.M. Corp., 406 U.S. 109 (1972); Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971); Evans v. Abney, 396 U.S. 435 (1970); Evans v. Newton, 382 U.S. 296 (1966); American Fed. of Labor v. Watson, 327 U.S. 582 (1946); Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711 (1945). In Coy v. Iowa, 487 U.S. 1012, 1020 (1988) Justice Scalia specifically acknowledged that the Court was leaving any consideration of public policy for another day. Professors Paulsen and Sovern were prophetic, when in 1956, they wrote: "[i]t is highly improbable that the Supreme Court will, by use of federal materials, interfere significantly with the public policy doctrine of conflict of laws cases. If improvement is to come, it must come from the state judges, themselves." Monrad G. Paulsen & Michael I. Sovern, "Public Policy" in the Conflict of Laws, 56 Colum. L. Rev. 969, 1015 (1956). Though the article concerns but one discipline, the prediction is Catholic.

40. See United States v. Proctor & Gamble Co., 356 U.S. 677, 682 (1958). In that case the first John Harlan, joined by Justices Frankfurter and Burton, dissented-they would have given the trial judge considerable discretion in the matter. Secrecy is a rule which recently has not been adhered to with scrupulosity.

41. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436 (1964).

42. See E.P.A. v. Mink, 410 U.S. 73 (1973).

43. Id. at 87. He continued: "The importance of this underlying policy was echoed again and again during legislative analysis . . . . It was pointed out in the comments of many of the agencies that it would be impossible to have any frank discussion of legal or policy matters in writing if all such writings were to e subject to a public scrutiny." Id. at 87.

44. Harlow v. Fitzgerald, 457 U.S. 800, 813 n.20 (1982).

45. It is little wonder that the lower courts do not have a clear concept of what public policy consists. Of all the major Restatements of the Law, only Section 179 of the Restatement (Second) of the Law of Contracts attempts a definition. It provides that

"[a] public policy against the enforcement of promises or other terms may be derived by the court from (a) legislation relevant to such a policy, or (b) the need to protect some aspect of the public welfare, as is the case for the judicial policies against, for example, (i) restraint of trade . . . (ii) impairment of family relations . . . and (iii) interference with other protected interests."

Restatement (Second) of Contracts § 179 (1979). The other sections of that Restatement which refer to public policy make no attempt to define it. Section 178(1) provides that "[a] promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms." Id. § 178(1). Section 178(3) provides that "[i]n weighing a public policy against enforcement of a term, account is taken of," inter alia, "the strength of that policy as manifested by legislation or judicial decisions . . . ." Id. § 178(3)(a). Section 183 provides that: "[i]f the partys' performances can be apportioned into corresponding pairs of part performances so that the parts of each pair are properly regarded as agreed equivalents and one pair is not offensive to public policy, that portion of the agreement is enforceable by a party who did not engage in serious misconduct." Id. § 183. Section 181 provides for a balancing of the interest behind enforcement of a promise and the "public policy behind the requirement" of a licensing provision. Id. § 181. Section 197 balances denial of restitution on grounds of "public policy" with the effect which such denial would cause. See id. § 197. Section 365 provides that "[s]pecific performance or an injunction will not be granted if the act or forbearance that would be compelled or the use of compulsion is contrary to public policy." Id. § 365. Section 482(2)(d) of the Restatement (Third) of the Law of Foreign Relations of the United States merely proclaims that a court of the United States need not recognize a judgment of the court of a foreign state if, inter alia, the cause of action on which the judgment was based, or the judgment itself, is repugnant to the "public policy of the United States or of the State where recognition is sought." Restatement (Third) of the Law of Foreign Relations of the United States § 482(d) (1987). Section 90 of the Restatement (Second) of Conflict of Laws provides that "[n]o action will be entertained on a foreign cause of action the enforcement of which is contrary to the strong public policy of the forum." Restatement (Second) of Conflict of Laws § 90 (1969). Section 496C(2) of the Restatement (Second) of the Law of Torts provides that an express agreement to assume the risk will be unenforceable if it is "contrary to public policy." Restatement (Second) of Torts § 496(C)(2) (1964). Section 774 of the Restatement (Second) of the Law of Torts provides that one who "causes the nonperformance of . . . an agreement having a purpose or effect in violation of an established public policy is not liable." Id. § 774.

46. 360 U.S. 564 (1959).

47. Barr, 360 U.S. at 586 (Brennan, J., dissenting).

48. See id. at 590. Justice Brennan said that the case dealt with "large concepts of public policy and purports to balance the societal interests involved in them." Id. at 589.

49. See Butz v. Economou, 438 U.S. 478, 518-19 (1978) (citing Spalding v. Vilas, 161 U.S. 483, 458 (1896)).

50. Nixon v. Fitzgerald, 457 U.S. 731, 748 n.26 (1982).

51. See generally Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) (holding that the policy of a state supported university to limit its enrollment to women, denied otherwise qualified males the right to enroll for credit at its nursing school, violated the Equal Protection Clause). Justice Powell, in dissenting, wrote that if the Constitution required classifications to follow the latest professional opinions about education, the Constitution would be mandating that the courts determine public policy. See Hogan, 458 U.S. at 739 n.6 (Powell, J., dissenting); cf. United States v. Fordice, 505 U.S. 717 (1992) (concerning a state university's admission policies which required higher ACT scores for historically white institutions, in which public policy was not mentioned).

52. See supra note 2.

53. See infra text accompanying notes 238-39.

54. The Jainists preach that people should limit the number of things in daily life. See John B. Noss, Man's Religions, 113 (6th ed. 1977). It would seem therefore that were the rulers-any rulers-to accept Jainism, their task would be made easier than under a religion which countenances a welter of stimuli in its followers' lives. Djuna Barnes said in Nightwood, "This would be a fine world, Lord, if you could get everybody out of it." Djuna Barnes, Nightwood 132 (1937). The problem is you cannot get everyone out of it and most of them are not Jainists.

55. 349 U.S. 294 (1955).

56. See infra text accompanying notes 249-50 (regarding the effect of the Supreme Court's rulings on public policy).

57. 410 U.S. 113 (1973).

58. 410 U.S. 179 (1973).

59. Even those who may think abortion is a sin and are grateful there were not enough lions in the Coliseum to finish the job, often think some of the steps taken by their colleagues to prove their point are far too drastic.

60. See In re Sealed Case, 148 F.3d 1073 (D.C. Cir. 1998).

61. Professor Kramer wrote that "[i]t is possible that some courts could choose not to classify same-sex marriages as contrary to their states' public policy, which may explain why conservatives in so many states are lobbying to have the principle codified." Larry Kramer, Same-Sex Marriage, Conflict of Laws and the Unconstitutional Public Policy Exception, 106 Yale L.J. 1965, 1976 (1997).

62. If public policy equated with public opinion, it would seem that the moment a policy held the favor of less than a majority of the populace, it would lose its status as public policy.

63. Congress has analogized a "shift in popular feeling" to "consideration of public policy and equal justice to the whole people." United States v. Union Pac. R.R. Co., 353 U.S. 112, 127 (1957). The connection between the two is so strong as to prompt Justice Brennan to use the term "public policy interest." Franks v. Bowman Transp. Co. Inc., 424 U.S. 747, 778 (1976). Likewise, Chief Justice Burger used the term "public interest policy." CBS, Inc. v. FCC 453 U.S. 367, 382 (1981).

64. See Branti v. Finkel, 445 U.S. 507, 529 (1980) (Powell, J., dissenting).

65. The interest with which public policy is concerned may not always be a matter of public concern. In Hughes v. Fetter, 341 U.S. 609, 611 (1951), the forum's interest was in not entertaining wrongful death actions, which probably lacked the wide attention as to be considered a matter of "public" interest. But c.f. Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 66-80 (1985) (Stevens, J., dissenting) (discussing Justice Stevens' observation that a State's policy is often in the public interest).

66. See Butz v. Economou, 438 U.S. 478, 506 (1978). It could also be said that there is a responsibility on the part of the government to do so. See Ambach v. Norwick, 441 U.S. 68, 83 (1979).

67. Butz, 438 U.S. at 506.

68. Polk County v. Dodson, 454 U.S. 312, 318 (1981).

69. See Justice Douglas' use of the term in Paul v. United States, 371 U.S. 245, 276 (1963) (addressing the public benefits of releasing the normal methods of competitive bidding). Justice Blackmun, relying on previous case law, reiterated that the courts must not recognize as a public policy "general considerations of supposed public interests." W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766 (1983) (quoting Muschany v. United States, 324 U.S. 47, 66 (1943)). Justice Powell uses the terms almost interchangeably in Town of Newton v. Rumery, 480 U.S. 386, 392 (1987) (citing Restatement (Second) of Contracts § 178 (1981)), when he wrote: "a promise is unenforceable if the interest is its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement." See also Justice Bryon White' comment in United Paperworkers Int'l Union AFL-CIO v. Misco, Inc., 484 U.S. 29, 42 (1987).

70. Such situation usually affords a defense in a defamation action. In Curtis Publ'g Co. v. Butts, 388 U.S. 130 (1967), the second Justice John Harlan wrote: "in the resolution of a libel question a rational distinction cannot be founded on the assumption that criticism of private citizens who seek to lead in the determination of . . . policy will be less important to the public interest than will criticism of government officials." Curtis, 388 U.S. at 147-48 (quoting Pauling v. Glove-Democrat Publ'g Co., 362 F.2d 188, 196 (1966)) (alteration in original). Similar to this definition of public interest is the public's interest in knowing about its government. See Houchins v. KQED, Inc., 438 U.S. 1 (1978). In that case Justice Stevens dissented on the basis of another public interest in seeing that the integrity of trials is safeguarded. See id. at 36-37 (Stevens, J., dissenting).

71. See Ambach v. Norwick, 441 U.S. 68, 73 (1979) (i.e. fish in a state's territorial waters). Justice Rehnquist noted in his dissent in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557, 587 (1980), that the public was interested in the free flow of commercial information, but that a utility serves special interests as a result of the natural monopoly of the service it provides. Chief Justice Rehnquist, in his dissent in Wyatt v. Cole, 405 U.S. 158 (1992) wrote that he would have thought it beyond peradventure that there existed a "strong public interest in encouraging private citizens to rely on valid state laws of which they have no reason to doubt the validity." Id. at 179-80 (Rehnquist, C.J., dissenting) (citing Buller v. Buschler, 706 F.2d 844, 851 (1953); Folsom Inv. Co., Inc. v. Moore, 681 F.2d 1032, 1037-38 (1982)). A fortiori, he would have recognized a public policy affording such private citizens a qualified immunity from liability for their use of such state laws which were subsequently held unconstitutional.

72. See American Power & Light Co. v. SEC, 329 U.S. 90 (1946). Justice Murphy listed "public interest" as a standard in terms of "just and reasonable rates, unfair methods of competition." Id. at 105. In CBS, Inc. v. Democratic Nat'l Comm., 412 U.S. 94 (1973), the question arose as to whether the "public interest" standard of the Communications Act of 1934 required broadcasters to accept editorial advertisements. Chief Justice Burger, writing for the Court which rendered a negative ruling to the question, wrote that the public interest in fairness would not be furthered because people with the most money could monopolize airtime. See id. at 130. Another example is found in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973), dealing with the United States Commerce Commission's actions under the Environmental Policy Act of 1969. See also Gulf States Utilities Co. v. Fed. Power Comm'n., 411 U.S. 747 (1973) (regarding orders by the Federal Power Commission dealing with the issuance of bonds); FCC v. National Citizens Comm., 436 U.S. 775 (1978); FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981) (defining the public interest standard of the Communications Act of 1934).

73. See Baltimore & Ohio R.R. Co. v. United States, 386 U.S. 372, 405 (1967) (involving whether to enjoin the merger of small competing railroads).

74. See supra text accompanying note 4.

75. See Dalton v. Little Rock Family Planning Services, 516 U.S. 474, 476 (1996); Nichols v. United States, 511 U.S. 738, 748 n.12 (1994); Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 250 (1994); International Union United Mine Workers of America v. Bagwell, 512 U.S. 821, 825 (1994); Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 336 (1986); New York v. Ferber, 458 U.S. 747, 757 (1982); Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 673, 695 (1982); New York Tel. Co. v. New York State Dep't Labor, 440 U.S. 519, 535 (1979); Carey v. Population Services, Int'l, 431 U.S. 678, 694 (1977); Stanton v. Stanton, 429 U.S. 501, 504 n.4 (1977); Lindsey v. Normet, 405 U.S. 56, 70 n.10 (1972); American Radio Ass'n v. Mobile S.S. Ass'n, Inc., 419 U.S. 215, 229 (1974); Hoyt v. Florida, 368 U.S. 57, 63 (1961); Steele v. General Mills, Inc., 329 U.S. 433, 440 (1947); Williams v. North Carolina, 325 U.S. 226, 237-38 (1945). In Penn Central Transp. Co. v. New York, 438 U.S. 104, 109 n.5 (1978) the Supreme Court said that Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922) held that a state statute which substantially furthers an important public interest may amount to an unlawful "taking." At times Congress will pass an act to facilitate the public policy of the States as proclaimed through their legislatures. See Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 392-93 (1951). The District of Columbia may have its own public policy. See Hudson Distrib., Inc. v. Eli Lilly & Co., 377 U.S. 386, 389 (1964). Territories may have public policies. See Unemployment Compensation Comm. of Alaska v. Aragon, 329 U.S. 143, 153 (1946). Counties may have their own public policies as may municipalities. See Pembaur v. City of Cincinnati, 475 U.S. 469, 475 (1986).

76. The Senate Judiciary Committee has taken the position that a sound public policy on the part of the Federal Government lies in the direction of lending assistance to the States to effectuate their own public policy with regard to their internal affairs, particularly where such assistance "consists of removing a handicap resulting from the surrender of the power over interstate commerce by the States to the Federal Government." Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 408 (1951).

77. As far as the states are concerned Justice Holmes' dissent in Tyson & Bro. United Theater Ticket Office, Inc. v. Banton, 273 U.S. 418 (1927), expresses his position by stating: a state Legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.

Tyson, 273 U.S. at 446 (Holmes, J., dissenting)). This position statement has been quoted with approval by the Supreme Court in Ferguson v. Skrupa, 372 U.S. 726, 729 (1963) and Paris Adult Theatre I v. Slaton, 413 U.S. 49, 60 n.11 (1973). Some State legislatures being less fragmented and politicized than Congress, may better express by way of public policy what is best for their constituencies than does Congress when it proclaims public policy. But cf. id. at 61 n.12. Justice Frankfurter has said that the State's public policy must be "valid." See International Bhd. of Teamsters Local 695, AFL v. Vogt, Inc., 354 U.S. 284, 293 (1957), and this caveat was approved in American Radio Ass'n. v. Mobile S.S. Ass'n, Inc., 419 U.S. 215, 230 (1974).

78. Justice Story announced this rule as early as 1844 in Vidal v. Girard's Ex'rs, 43 U.S. 127, 197-98 (1844) when he wrote:

[n]or are we at liberty to look at general considerations of the supposed public interests and policy of Pennsylvania upon this subject, beyond what its constitution and laws and judicial decisions make known to us. The question, what is the public policy of a state, and what is contrary to it, if inquired into beyond these limits, will be found to be one of great vagueness and uncertainty, and to involve discussions which scarcely come within the range of judicial duty and functions, and upon which men may and will complexionally differ . . . .

Id. at 197-98. The first Justice Harlan created some doubt in the matter thirty-five years later in American and Foreign Christian Union v. Yount, 101 U.S. 352, 357 (1879), when he wrote: "this court is obliged to follow . . . State law and give effect to the public policy of Illinois, as announced by the highest court of that State." Did he imply that the "highest court" of Illinois could make public policy, or was its role, in Harlan's view, limited to merely expressing the public policy that had been made by another?

79. See infra text accompanying notes 114-30.

80. Justice Black wrote in United States v. Atlantic Mut. Ins. Co., 343 U.S. 236, 239 (1952), that a general rule fashioned by the courts that is continuously accepted as a guide for long periods of time acquires the "force and precision of a legislative enactment". It is not clear whether he was referring to all courts or just the United States Supreme Court. Three years later Justice Black, writing in Bisso v. Inland Waterworks Corp., 349 U.S. 85, 90 (1955) indicated that he was not restricting public policy making power to the Supreme Court when he said that "intervening lower court cases together strongly point to the existence of a judicial rule, based on public policy."

81. See Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U.S. 549, 565 (1911). See text accompanying notes 131-35.

82. See Kansas City S. Ry. Co. v. Van Zant, 260 U.S. 459 (1923). See also infra text accompanying notes 136-44.

83. See United States v. Pink, 315 U.S. 203, 229 (1942). Chief Justice Burger must have been compatible with this conclusion when he wrote in Bob Jones Univ. v. United States, 461 U.S. 574, 598 (1983), that all three branches of government can "reach conclusions that add up to a firm public policy." While not disagreeing that the President can make public policy, Justice Black has implied that if the attempted policy-making by the President is in a field over which Congress has the power to make such public policy, the President has exceeded his or her powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588 (1952), in which Justice Black wrote:

[T]he President's order does not direct that a congressional policy be executed in a manner prescribed by Congress . . . [but by] the President. The preamble of the order itself, like that of many statutes, sets out reasons why . . . certain policies should be adopted . . . . The power of Congress to adopt such public policies as those proclaimed by the order is beyond question.

Justice Brown furnished some fenestration for including the President among the architects of public policy when he wrote in Atlantic & Pac. R.R. Co. v. Mingus, 165 U.S. 413, 437-38 (1897), that whether certain Congressional action was consistent with public policy "could only be determined by Congress, or the executive officers of the Government."

84. See Mitsubishi Motors Corp. v. Solar Chrysler-Plymouth, Inc., 473 U.S. 614, 637 (1985); Hurd v. Hodge, 334 U.S. 24, 34 (1948).

85. See FERC v. Mississippi, 456 U.S. 742, 761 (1982).

86. See Justice Burton's opinion in Lilly v. Commissioner of Internal Revenue, 343 U.S. 90, 94 (1952). There the issue was whether payments made by optical companies of one-third of the retail price of eye glasses to eye doctors who prescribed the eyeglasses and who recommended the companies to patients were deductible as ordinary and necessary business expenses, i.e. commissions. Id. at 92-93. In approving of the Act under which the deductions were held valid, Justice Burton wrote: "[t]here is no statement in the Act, of in its accompanying regulations, prohibiting the deduction of ordinary and necessary business expenses on the ground that they violate or frustrate 'public policy.'" Id. at 94. Accord Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U.S. 411 (1959), Justice Douglas' opinion in NLRB v. Indus. Union, 391 U.S. 418, 423 (1968) ("[a] proceeding by the Board is not to adjudicate private rights but to effectuate a public policy."), and Justice Brennan's opinion in Clayton v. International Union, 451 U.S. 679, 689 (1981). Cf. Chief Justice Burger's opinion in Bob Jones Univ. v. United States, 461 U.S. 574, 597 (1983), to the effect that when it is clear that some act violates public policy, an administrative agency (i.e. the I.R.S. in that case), can act accordingly. Id. But cf. Justice Powell's concurring opinion in that case: "[t]he contours of public policy should be determined by Congress, not by judges or the IRS" Id. at 612.

87. The second Justice John Harlan in Southwestern Sugar & Molasses Co., 360 U.S. at 420. In Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 577 (1990), Justice Brennan pointed out that both the Congress and the Federal Communications Commission have developed a public policy calling for diversity of ownership of broadcast properties or (facilities), resulting in improved service to women and minority audiences. Justice Douglas in NLRB, 391 U.S. at 424 wrote: "[a] proceeding by the Board [N.L.R.B.] is not to adjudicate private rights, but to effectuate public policy."

88. Sugarman v. Dougall, 413 U.S. 634, 647 (1973). Accord Gregory v. Ashcroft, 501 U.S. 452, 462 (1991); Cabell v. Chavez-Salido, 454 U.S. 432, 440-41 (1982). The Court has said that public policy is an element to be considered when allowing agencies to collect fees. See Skinner v. Mid-American Pipeline, Co., 490 U.S. 212, 223 (1989). The Federal Trade Commission determined the practices which are against Public policy in F.T.C. v. Independent Fed'n of Dentists, 476 U.S. 447, 454 (1986). Might not this "policing" involve a certain amount of making of public policy? See infra text accompanying notes 136-144. This view is at least plausible when one remembers that in NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 426 (1947), Justice Murphy said that the court should not substitute its views of public policy for those of the Board. It is unfortunate that Justice Murphy did not specify the maker of public policy upon which he said that the agency judgment was based in SEC v. Cherney Corp., 332 U.S. 194, 209 (1947). Congress certainly did not clarify this issue with its H.R. Doc. No. 883, 79th Cong., 2d Sess., at 155-56 which equates public policy with private practice. See United States v. Rock Island Motor Transit Co., 340 U.S. 419, 444 (1951).

89. See United States Immigration & Naturalization Serv. v. Hibi, 414 U.S. 5, 8 (1973).

90. See Wong Yang Sung v. McGrath, 339 U.S. 33, 47 (1950).

91. BMW of N. Am., Inc., v. Gore, 517 U.S. 559, 596 (1996) (Justice Breyer, concurring opinion).

92. H.R. Rep. No. 96-1418, at 12 (1980), in referring to the Equal Access to Justice Act, said that "[t]he Bill rests on the premise that a party who chooses to litigate an issue against the Government is not only representing his or her own vested interest, but is also refining and formulating public policy." Justice Stevens, in writing for the majority of the Court, did not comment on the matter.

93. In Barrentine v. Arkansas Best-Freight Sys., Inc., 450 U.S. 728, 744 (1981), Justice Brennan wrote that an arbitrator must "effectuate the intent of the parties rather than enforce the statute" (FLSA), thus he may make a ruling that is inimical to the public policy underlying the statute. Id.

94. St. Louis Mining & Milling Co. v. Montana Mining Co., 171 U.S. 650, 655 (1898) (emphasis added).

95. In Hartford Fire Ins. Co. v. Chicago, Minneapolis & St. Paul Ry. Co., 175 U.S. 91, 100 (1897), he wrote: "[q]uestions of public policy as affecting the liability for acts done, or upon contracts made and to be performed" may be controlled by (1) the Constitution, (2) laws, (3) treaties of the United States, (4) principles of commercial law, (5) principles of mercantile law, or (6) general jurisprudence of "national or universal application", and if not governed by those authorities, the questions are governed by the law of the state as expressed by the applicable (1) state constitution, or (2) statutes, or (3) universal law, i.e. that expressed by the highest court of the State.

96. Muschany v. United States, 324 U.S. 49, 66 (1945).

97. See Muschany, 324 U.S. at 66. Justice Reed wrote that Congress had not outlawed contingent contracts, and "until it does, we cannot say that they are contrary to public policy." Id. at 65. "The courts must be content to await legislative action." Id. at 67. He added: "[I]t is Congressional enactments which determine public policy." Id. at 68.

98. Id. at 66.

99. See Lilly v. Commissioner of Internal Revenue, 343 U.S. 901 (1952).

100. Standard Oil of N.J. v. United States, 221 U.S. 1, 89 (1911), as Justice White stated when the "lawmaking power" has not spoken, public policy can be discerned from "the constant practice[s] of the government officials." Id.

101. Berkovitz by Berkovitz v. United States, 486 U.S. 531, 537 (1954).

102. "[T]he Constitution, treaties, federal statutes and applicable legal precedents." Hurd v. Hodge, 334 U.S. 24, 34 (1948) (Chief Justice Vinson, writing for the court). Public policy can "be fixed only by the people acting through their elected representatives" Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Rock Island & Pac. R.R. Co., 393 U.S. 129, 138 (1969) (Justice Black, writing for the court). "Statutes, the common law, or otherwise" FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244 (1972) (Justice Byron White, writing for the court)). In Commissioner of Internal Revenue v. Tellier, 383 U.S. 687, 690 (1966) the Supreme Court ruled that "public policy" represented by Internal Revenue Service practice and Tax Court rulings were insufficient to establish public policy, under the facts of that case. The ruling begs the question of whether, were the facts otherwise, public policy would have been established by Internal Revenue Service practice and Tax Court rulings.

103. Though this paper is primarily concerned with Congress' making of national public policy, as used in this paper "legislatures" refers not only to state legislatures (See Louisville & N. R.R. Co. v. Kentucky, 161 U.S. 677 (1896)), but also to Congress.

104. See United States v. Gaubert, 499 U.S. 315, 323 (1981). He also said that public policy is fashioned in the legislative forum. See Whitcomb v. Chavis, 403 U.S. 124, 157 (1971).

105. See Chrysler Corp. v. Brown, 441 U.S. 281, 314 (1979) (Freedom of Information Act); Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 566 (1978) (the Norris-La Guardia Act); Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 199 (1962), Boys Mkts., Inc. v. Retail Clerks' Union, 398 U.S. 235, 250 (1970); Still v. Norfolk & W. Ry. Co., 368 U.S. 35, 38 (1961) (the Federal Employers' Liability Act, providing a remedy for railroad workers negligently injured in the honest performance of their duties); Telegraphers v. Chicago N.W. R.R., 362 U.S. 330, 335 (1960); NLRB v. Insurance Agents Int'l, 361 U.S. 477, 499 (1960) (NLRA); United Bd. of Carpenters & Joiners of Am. v. United States, 330 U.S. 395, 401 (1947); United States v. United Mine Workers of Am., 330 U.S. 258, 273-74 (1947); National Licorice Co. v. NLRB, 309 U.S. 350 (1940); United States v. Lowden, 308 U.S. 225 (1939) (Transportation Act of 1920); Norman v. B. & O. R.R. Co., 294 U.S. 240 (1935) (Gold Reserve Act of 1934). See also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991); United States v. Philadelphia Nat. Bank, 374 U.S. 321, 354 (1963); United States v. Mississippi Valley Generating Co., 364 U.S. 520, 564, 566 (1961); Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 528 (1949); United States v. Columbia Steel Co., 334 U.S. 495, 508 (1948).

The National Environmental Policy Act of 1969 (42 U.S.C. § 4321, et seq.) referred to policies. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, n.4, 407 (1988); Bigelow v. Virginia, 421 U.S. 809, 824 (1975); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Lindsey v. Normet, 405 U.S. 56, n.10, 70 (1972); Atlantic Refining Co. v. F.T.C., 381 U.S. 357, 369 (1965); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973). See also Marine Cooks & Stewards v. Panama S.S. Co. 362 U.S. 365, 365(1960); A specific declaration of public policy in the statute will not save it from constitutional invalidity. See Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U.S. 549, 565 (1911).

106. See Santa Fe Prescott & Phoenix Ry. Co. v. Grant Bros. Constr. Co., 228 U.S. 177, 192 (1913). If legislation does not specifically state the public policy, but merely "advances" it (as in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 27 (1991)), or "enforces" it (see supra text accompanying note 89), an interesting question arises as to who created the public policy.

107. See, e.g., the Letter written to Senator Edwin C. Johnson by the F.C.C. regarding public policy. See Head v. New Mexico Bd., 374 U.S. 424, 432 (1963). See, e.g., the (letter which the Comptroller of the Currency wrote to Congress in 1916 proclaiming how a proposed statute would comport with public policy; see also Barnett Bank of Marion County v. Nelson, 517 U.S. 25, 36 (1996). See H.R. Rep. No. 89-2337, at 89 (1966), the title to which reveals that it dealt with public policy. The Report was considered in United States v. Cartwright, 411 U.S. 546, 547 (1973), Burks v. Lasher, 441 U.S. 471, 483 (1979), and Board of Governors v. Investment Co. Inst., 450 U.S. 46, 51, n.7 (1981).

108. Justice Brandeis said the argument for public policy fails when the proponent fails to produce decisions indicating what the public policy is. See Bradford Elec. Light Co. v. Clapper, 286 U.S. 145, 161 (1932). In American Airlines, Inc. v. Wolens, 513 U.S. 219, 237 (1995), Justice Stevens characterized a provision in an Illinois Consumer Fraud Act, mandating an absence of fraud in commercial dealings as "no more or less a state-imposed 'public policy' than a negligence rule." Id.

109. Holden v. Stratton, 198 U.S. 202, 213 (1905). It has been observed that at times the court will assign public policy as a reason for a decision, extracting it from the spirit of a statute when unable to directly apply the statute to the case at hand. See Monrad G. Paulsen and Michael I. Sovern, Public Policy in the Conflict of Laws, 56 Colum. L. Rev. 969, 990 (1956).

110. See Federal Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976); Trans-American Freight Lines, Inc. v. Brada Miller Freight Sys., Inc., 423 U.S. 28 (1975); Federal Power Comm'n v. New England Power Co., 415 U.S. 345, 349 (1974); National Cable Television Ass'n v. United States, 415 U.S. 336 (1974); Otis & Co. v. S.E.C., 323 U.S. 624, 631, 637 (1945); Schenk v. Alberto Culver Co., 417 U.S. 506 (1934); Atlantic & Pac. R.R. Co. v. Mingus, 165 U.S. 413 (1897).

111. When courts engage in statutory construction, however, public policy cannot determine the outcome unless some specific policy choices fairly can be attributed to the legislative body. See Dawson Chem. Co. v. Robin & Haas, 448 U.S. 176, 196 (1980). Congress has been guilty of some loose wording of its own in connection with public policy. H.R. Rep. No. 96-1418, at 2 (1980) (House Report), contained the statement: "a party who chooses to litigate an issue against the government is not only representing his or her own vested interest but is also refining and formulating public policy"-a clear, albeit not necessarily correct -announcement that an individual may make public policy. See Ardestani v. Immigration & Naturalization Serv., 502 U.S. 129, 142 (1991), which referred to the Report. The Senate Report to 7 U.S.C. § 2015(d)(3) (1994) stated that "[p]ublic policy demands an end to food stamp subsidation of all strikers," without offering any clue as to who made that public policy. See Lyng v. International Union, 485 U.S. 360, 371 (1988) (quoting S. Rep. No. 97-35, at 62 (1981)). The McGuire Act refers to rights created by "statute, law or public policy." See Hudson Distrib., Inc. v. Eli Lilly & Co., 377 U.S. 386, 389 (1969).

112. See Knott v. Botany Worsted Mills, 179 U.S. 69, 71 (1910), in which it was clear that the Harter Act changed the settled law of the country to the effect that common carriers by land or sea could not by any form of contract exempt themselves from responsibility for loss or damage arising from the negligence of their servants and that any stipulation for such exemption was void as against public policy. See also The Kennsington, 183 U.S. 263, 269 (1902).

113. See Kennsington, 183 U.S. at 269.

114. License Tax Cases, 72 U.S. 462, 469 (1866).

115. See Henry v. A.B. Dick Co., 224 U.S. 1, 35 (1912).

116. United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, 341 (1897).

117. Standard Oil of N.J. v. United States, 221 U.S. 1, 104 (1911) (Hughes, J., dissenting).

118. Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U.S. 549, 565 (1911).

119. McGuire, 219 U.S. at 569 (quoting McLean v. Arkansas, 211 U.S. 539, 547-48 (1909).

120. Williams v. Mayor, 289 U.S. 36, 42 (1933).

121. License Tax Cases, 72 U.S. 462, 469 (1866). But cf. Justice Stevens' dissent in Quijas v. Shearson/Am. Express, 490 U.S. 477, 487 (1989), in which he indicated a split in judicial thinking on the latitude that judges have in making public policy. The case held that a pre-dispute agreement to arbitrate claims under the Securities Act of 1933 (15 U.S.C. § 771(2)), was enforceable. Justice Stevens wrote that:

[i]n the final analysis, a Justice's vote in a case like this depends more on his or her views about the respective lawmaking responsibilities of Congress and this Court than on conflicting policy interests. Judges who have confidence in their own ability to fashion public policy are less hesitant to change the law than those of us who are inclined to give wide latitude to the view of the voters' representatives on non-constitutional matters.

122. Delmas v. Merchants Mut. Ins. Co., 81 U.S. 661, 666 (1871). See Chicago & A.A. Co. v. Wiggins Ferry Co., 119 U.S. 615, 624 (1887); Chicago Life Ins. Co. v. Needles, 113 U.S. 574, 585 (1885); Tarver v. Keach, 82 U.S. 67, 68 (1872). The courts have continued this abstention. See Buckely v. Fitzsimmons, 509 U.S. 259, 278 (1993); Reno v. Flores, 507 U.S. 292, 314 (1993); Burns v. Reed, 500 U.S. 478, 493 (1991); Whitmore v. Arkansas, 495 U.S. 149, 160 (1990); Tower v. Glover, 467 U.S. 914, 922 (1984); Schall v. Martin, 467 U.S. 253, 281 (1984); Schweiker v. Wilson, 450 U.S. 221, 233 (1981); United States v. Rutherford, 442 U.S. 544, 555 (1979); Price v. Gurney, 324 U.S. 100, 106 (1945); United States v. Johnson, 323 U.S. 273, 275 (1944); Carolene Prods. v. United States, 323 U.S. 18, 31 (1944).

123. See Griffin v. McCoach, 313 U.S. 498, 507 (1941). In United States v. Mitchell, 322 U.S. 65, 66 (1944) Justice Frankfurter said:

[p]ractically the whole body of the law of evidence governing criminal trials in the federal courts has been judge-made. Naturally these evidentiary rules have not remained unchanged. They have adapted themselves to progressive notions of relevance in the pursuit of truth through adversary litigation, and have reflected dominant conceptions of standards appropriate for the effective and civilized administration of law.

See United States v. Mitchell, 322 U.S. 65, 66 (1944) (regarding bankruptcy rules).

124. Chief Justice Salmon P. Chase would disagree with this statement. In the License Tax Cases, 72 U.S. 462, 469 (1866), he recognized that the courts must at times interpret what the legislative bodies intended when they proclaimed public policy. He thought that these were situations in which the courts merely clarified what the legislation stated. The issue was resolved, not by some new policy created by the court, but by that proclaimed by the legislative body, and clarified by the court. Given the era in which he lived, it might not have been possible that he could even recognize that there may arise circumstances that Congress and state legislatures would have no way of contemplating. The first Justice Harlan would agree with Chase. In his dissent in Standard Oil of N.J. v. United States, 221 U.S. 1, 102 (1911), he wrote: "[T]his court would encroach upon the authority of Congress, if, under the guise of construction, it should assume to determine a matter of public policy."

125. In Standard Oil, 221 U.S. at 64, Chief Justice Edward White noted that Congress made no definition by clearly fixed standard, i.e. "by defining the ulterior boundaries which could not be transgressed by impunity, to leave it to be determined by the light of reason, guided by the principle of law and the duty to apply and enforce the public policy embodied in the statute . . . ."

126. U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. VI, VII.

127. See Patton v. United States, 281 U.S. 276, 301 (1930).

128. See Patton, 281 U.S. at 305.

129. See Bisso v. Inland Waterworks Corp., 349 U.S. 85, 90 (1955). Justice Frankfurter dissented on the basis that "the highest public policy is found in the enforcement of the contract which was actually made." Id. at 107. See infra text accompanying notes 161-66 regarding the constitutional protection of contracts.

130. In Building Serv. Employees Int'l Union Local 262 v. Gazzam, 339 U.S. 532, 540 (1950), Justice Minton wrote: "[m]uch public policy does not readily lend itself to accompanying criminal sanctions. Whether to impose criminal sanctions in connection with a given policy is itself a question of policy". In Associated Gen. Contractors v. California State Council, 459 U.S. 519, 537 n.34 (1983), Justice Stevens approved a state judge's recognition that due to "convenience of public policy, of a rough sense of justice, the law . . . declines to trace a series of events beyond a certain point." See Justice Brennan's general approval of this principle in Blue Shield v. McCready, 457 U.S. 465, 478 n.13 (1982).

131. See Williams v. North Carolina, 317 U.S. 287, 303 (1942); Williams v. Mayor of Baltimore, 289 U.S. 36, 42 (1933); Order of St. Benedict v. Steinhauser, 234 U.S. 640, 649 (1914); Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U.S. 549, 565 (1911); John Hancock Mut. Life Ins. Co. v. Warren, 181 U.S. 73, 77 (1901); Gross v. United States Mortgage Co., 108 U.S. 477, 487 (1883); Vidal v. Girard's Ex'rs, 43 U.S. 127, 198 (1844).

132. See McGuire, 219 U.S. at 565.

133. See Williams, 289 U.S. at 42, in which he wrote: "The judicial function is exhausted with the discovery that the relation between means and end is not wholly vain and fanciful, an illusory pretense. Within the field where men of reason may reasonably differ, the Legislature must have its way."

134. See infra text accompanying note 190. The retroactivity of a finding of unconstitutionality may, itself, depend in part on public policy. See Lemon v. Kurtzman, 411 U.S. 192, 199 (1973).

135. In California v. Cabazoo Band of Mission Indians, 480 U.S. 202, 217-18 (1987) the State of California attempted to regulate bingo games conducted by Indian tribes under its public policy against the possible infiltration of organized crime into the tribes' conduct of the games. Justice Byron White, writing for the majority, noted that the federal government had taken steps to regulate and assist Indian tribes, and while he did not refer to such action as federal public policy, such interests, policies and actions sufficiently clashed with the State's public policy, as to authorize the court from striking them down. Justice Stevens (joined by Justices O'Connor and Scalia), registered a strong dissent on two grounds. Substantively, Justice Stevens thought that the Court's holding that the tribal bingo games comply with the State's public policy, because the State permits other gambling, is tantamount to holding that driving over the speed of 60 miles per hour is consistent with public policy because the State permits driving of up to 55 miles per hour. See Cabazoo, 480 U.S. at 224 (Stevens, J., dissenting). Procedurally his position was that any decision to adopt, reject, and thereby to set aside the substantial concerns of a State, as represented by its public policy, should be made by Congress and not by this Court, the temporary occupant of the office of the Secretary of Interior or some entrepreneur who knew gambling better than Indian affairs.

136. See for example, the Court's construction of insurance contracts in Maryland Cas. Co. v. Cushing, 347 U.S. 409 (1954).

137. United States v. Prescott, 44 U.S. 578, 588 (1845).

138. See United States v. Thomas, 82 U.S. 337 (1872).

139. See Bob Jones Univ. v. United States, 461 U.S. 574, 594 (1983); but see supra text accompanying notes 74-102.

140. See Nixon v. Fitzgerald, 457 U.S. 731, 746 (1982) (it being assumed that every statute has a purpose, whether patent or not).

141. W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766 (1983).

142. Grace, 461 U.S. at 766. This phrasing came from Justice Reed's majority opinion in Muschany v. United States, 324 U.S. 49, 66 (1945). It must be remembered that the Court has said that the public policy must be "valid." See International Bhd. of Teamsters Local 695 v. Vogt, 354 U.S. 284, 292 (1957).

143. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 43 (1987). Justice White acknowledged that the Court of Appeals was within its jurisdiction to formulate public opinion in that case, but that it did not follow the W.R. Grace "approach." See Misco, 484 U.S. at 44.

144. Supposedly by the "laws" the Justices meant statutes. There can be little doubt as to the meaning of "precedents". Followed to its logical conclusion, if a court is limited in its public policy-making authority to precedents (in addition, of course, to statutes), only the highest court in a jurisdiction would be authorized to make binding public policy. All other courts in that jurisdiction would be limited to making public policy, which is merely persuasive authority. Since that is the status of inferior courts generally, it is problematic as to whether these statements of Justices Blackmun and Byron White added anything to public policy jurisprudence.

145. Justice Stevens, however, might disagree with that statement. In Members of City Council of Los Angeles v. Taxpayers, 466 U.S. 789, 815-16 (1984), he wrote that it is plausible that public policy arguments do not necessarily equate with constitutionally mandated law.

146. While the Court has not explicitly stated this proposition, several Justices (notably Justice O'Connor), have indicated agreement with it. Justice Stevens in Meyer v. Grant, 486 U.S. 414, 425 (1988), said that freedom of speech is public policy. He had said earlier (in Lassiter v. Department of Soc. Svcs. of N.C., 452 U.S. 18, 33 (1981)) that public policy may dictate higher standards than those imposed by the Constitution.

147. Justice Stevens in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996) (citation omitted), wrote that speech bans "often serve only to obscure an 'underlying governmental policy' that could be implemented without regulating speech. In this way, these commercial speech bans not only hinder consumer choice, but also impede debate over central issues of public policy." See also Bond v. Floyd, 385 U.S. 116, 135 (1966) (in which Chief Justice Warren wrote: "the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy." The Petitioner, Julien Bond, was a state legislator who spoke out against the Vietnam War).

148. Rankin v. McPherson, 483 U.S. 378, 387 (1987). The Court has held that an attempt by a Public Service Commission to prohibit such discussion violates the First Amendment. Consolidated Edison Co. of N.Y., Inc. v. Public Svc. Comm'n of N.Y., 447 U.S. 530, 543 (1980).

149. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 768 (1995) (Scalia, J., opinion announcing judgment of the Court). Justice O'Connor disagreed with Justice Scalia. She wrote "[o]n the contrary, when the reasonable observer would view a governmental practice as endorsing religion, I believe that it is our duty to hold the practice invalid." Capitol, 515 U.S. at 777 (O'Connor, J., concurring in part and concurring in the judgment). It is submitted that this substantiates the conclusion expressed in this paper (infra accompanying note 166), to the effect that Justice O'Connor believes that all constitutional provisions are expressions of public policy.

150. See Act of May 26, 1790, ch. 11, 1 Stat. 122, codified as amended, at 28 U.S.C. § 1738.

151. This proposition was made clear in Nevada v. Hall, 440 U.S. 410, 421 (1979). Justice Black's comment in Hughes v. Fetter, 341 U.S. 609, 611 (1951), to the effect that the Full Faith and Credit Clause embodies a "strong unifying principle", is probably compatible. The Hall pronouncement was merely a recognition of the same rule announced in Pacific Employers Ins. Co. v. Industrial Accident Comm'n of Cal., 306 U.S. 493, 501 (1939).

152. See Union Trust Co. v. Grosman, 245 U.S. 412, 416 (1918).

153. Bradford Elec. Light Co. v. Clapper, 286 U.S. 145, 160 (1932). Justice Brandeis, a few years later, in Broderick v. Rosner, 294 U.S. 629, 642 (1935), somewhat qualified that statement when he said that "the room left for the play of conflicting policies is a narrow one." One should not assume, however, that conflict results from a difference in the public policies. Bradford Electric Light Co., 286 U.S. at 161.

154. In Hughes v. Fetter, 341 U.S. 609, 611-12 (1951) (footnote omitted), Justice Black wrote:

[F]ull faith and credit does not automatically compel a forum state to subordinate its own statutory policy to a conflicting public act of another state; rather, it is for this Court to choose in each case between the competing public policies involved. The clash of interest in cases of this type usually has been described as a conflict between the public policies of two or more states. The more basic conflict involved in the present appeal, however, is as follows: On the one hand is the strong unifying principle embodied in the Full Faith and Credit Clause, looking toward maximum enforcement in each state of the obligations or rights created is recognized by the statutes of sister states; on the other hand it the policy of Wisconsin, as interpreted by its highest court, against permitting Wisconsin courts to entertain wrongful death actions.

The Court held that as "[t]he state has no real feeling of antagonism against wrongful death [actions] in general." Id. at 612. The policy of the forum (Wisconsin), must give way.

155. Bond v. Hume, 243 U.S. 15 (1917).

156. See Restatement (Second) Conflict of Laws § 223.

157. See Order of United Commercial Travelers v. Wolfe, 331 U.S. 586, 620 (1947).

158. See Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 578-80 (1908).

159. Baker by Thomas v. General Motors Corporation, 522 U.S. 222 (1998) (citations omitted).

160. Id. at 223 (citation omitted). Justice Kennedy acknowledged that "[w]e have often recognized the second State's obligation to give effect to another State's judgments even when the law underlying those judgments contravenes the public policy of the second State." Id. at 243 (Kennedy, J., concurring). He concurred in the judgment, however, because he thought that the doctrine of issue preclusion would have governed the matter, without what he saw an unnecessary structuring of two exceptions to full faith and credit, i.e. giving the forum the right to decline enforcement of those judgments "purport[ing] to accomplish an official act within the exclusive province of a [sister] State," and proclaiming the inapplicability of full faith and credit to injunctions "interfer[ing] with litigation over which the ordering State had no authority." Id. Kennedy's thesis was that since the Missouri litigants were not parties to the Michigan case out of which the agreed judgment arose, Michigan would not give its judgment preclusive effect as to them. See id. at 246-47. Hence, full faith and credit is inapplicable under the circumstances of this case. See id at 246. Justice Ginsburg, in her majority opinion, does not offer a reason or apology for her scholarly excursion, but makes it clear that issue preclusion was the basis of the majority position: "The Michigan judgment is not entitled to full faith and credit, we have endeavored to make plain, because it impermissibly interferes with Missouri's control of litigation brought by parties who were not before the Michigan court." Id. at 239 n.12.

161. U.S. Const. art. I, § 10.

162. See Baltimore & O. Southwestern R.R. Co. v. Voight, 176 U.S. 498, 505 (1900).

163. See Santa Fe, Prescott & Phoenix R. Co. v. Grant Bros. Constr. Co., 228 U.S. 177, 188 (1913).

164. See Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U.S. 411, 420 (1959). The statement of the English jurist, Sir George Jessel, M.R., in Printing & N. Registering Co. v. Sampson, L.R. 19 Eq. 462, 465 has been quoted with approval:

[i]t must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because, if there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into fairly and voluntarily, shall be held sacred, and shall be enforced by courts of justice. Therefore, you have this paramount public policy to consider-that you are not lightly to interfere with this freedom of contract.

Hartford Fire Ins. Co. v. Chicago, Minneapolis & St. Paul Ry. Co., 175 U.S. 91, 106 (1899).

165. Justice Blackmun in U.S. Trust Co. v. New Jersey, 431 U.S. 1 (1977), seemed to give greater weight to the Contracts Clause, whereas Justice Brennan believed that the Contracts Clause should be applied with "some coherent and constructive view of public policy." U.S. Trust, 431 U.S. at 33 (Brennan, J., dissenting).

166. In her concurring opinion in American Airlines, Inc. v. Wolens, 513 U.S. 219, 247 (1995) (O'Connor, J., concurring in judgment and dissenting in part), in which she considers the Contracts Clause, Justice O'Connor writes: "[t]he doctrinal underpinnings of the notion that judicial enforcement of the 'intent of the parties' can be divorced from a State's 'public policy' have been in serious question for many years." Justice O'Connor continued:

A contract, therefore, between two or more individuals cannot be said to be generally devoid of all public interest. If it be of no interest, why enforce it? . . . . Enforcement, in fact, puts the machinery of the law in the service of one party against the other. When that is worthwhile and how that should be done are important questions of public policy.

American Airlines, 513 U.S. at 247. Furthermore, she noted that "[c]ontract law is a set of policy judgments concerning how to decide the meaning of private agreements, which private agreements should be legally enforceable, and what remedy to afford for their breach." Id. at 247-48. She said that rules of contract construction are "not essential to a functional contract system. It is a policy choice that our contract system has made." Id. at 248. Justice O'Connor concluded by stating, "[c]ourts cannot enforce private agreements without reference to those policies, because those policies define the role of courts in deciding disputes concerning private agreements." Id. at 250.

167. In Romer v. Evans, 517 U.S. 620, 635 (1996), an amendment to the Colorado state constitution, which prohibited all legislative, executive, or judicial action designed to protect homosexual persons from discrimination was held unconstitutional as a violation of the Equal Protection Clause. See id.

168. The Court held that the Equal Protection Clause was not violated in either of the following cases: Foley v. Connelie, 435 U.S. 291, 296 (1978) (limiting appointment of members of a state police force to citizens of the United States-"this country entrusts many of its most important policy responsibilities" to such officers); Ambach v. Norwick, 441 U.S. 68, 82 (1979) (requiring United States citizenship for certificates as a public school-teacher).

169. See Bernal v. Fainter, 467 U.S. 216 (1984).

170. See Bernal, 467 U.S. at 216.

171. Id. at 225. The author of the majority opinion, Justice Thurgood Marshall wrote that:

[w]hat distinguishes . . . personnel [to whom restrictive licensing requirements are proper] from those to whom the political-function exception is properly applied is that the latter are invested either with policymaking responsibility or broad discretion in the execution of public policy that requires the routine exercise of authority over individuals. Neither of these characteristics pertains to the functions performed by Texas notaries.

Id. at 226. The rationale for the "political-function exception is that within broad boundaries a State may establish its own form of government and limit the right to govern to those who are full-fledged members of the political community." Id. at 221.

172. Kleppe v. New Mexico, 426 U.S. 529, 540 (1976) (quoting United States v. San Francisco, 310 U.S. 16, 30 (1840)).

173. The early case of United State v. Linn, 40 U.S. (15 Pet.) 290, 317 (1841), is illustrative. A contract in the form of a bond was entered into by the United States, but it failed to follow precisely the form set for it by statute, i.e. it lacked a seal. See Linn, 40 U.S. (15 Pet.) at 317. The Court, finding that the bond's form would pass muster under the common law, looked to see whether any public policy would be violated by permitting the discrepancy in that case. See id. Presumably a finding of a violation of public policy would have been grounds for going against the common law rule. By bringing public policy into the case the Court restricted its ruling, since the next case may involve a violation of public policy on its facts. See id. See also Forrester v. White, 484 U.S. 219, 223 (1988).

174. In United States v. Matthews, 173 U.S. 381, 383 (1899), the court found that the offer of a reward to a U.S. Marshal for the arrest of a certain person did not conflict with the common law rule that considered any agreement to give extra compensation to a government official for the performance of his regularly compensated duties, a species of quasi extortion and bribery. The reason assigned for the decision by the Court was the high discretion given the government official who extended the offer. See id. See also Richardson v. McKnight, 521 U.S. 399 (1997), which held that privately employed prison guards were not entitled to the immunity provided their governmental counterparts. Justice Breyer bolstered the majority opinion, which he authored, with an observation that the "tradition of immunity was so firmly rooted in the common law and was supported by such strong [public] policy reasons." Richardson, 521 U.S. at 403 (quoting Wyatt v. Cole, 504 U.S. 158, 164 (1992)).

175. See Railroad Co. v. Manufacturing Co., 83 U.S. 318, 322 (1872). In that case, Justice Davis wrote:

[t]he law, in conceding to carriers the ability to obtain any reasonable qualification of heir responsibility by express contract, has gone as far in this direction as public policy will allow. To relax still further the strict rules of common law, applicable to them, by pressing acquiescence in the conditions on which they propose to carry freight when they have no right to impose them, would, in our opinion, work great harm to the business community.

Railroad Co., 83 U.S. at 330.

176. See Union Trust Co. v. Grosman, 245 U.S. 412 (1918). See also infra text accompanying notes 182-84.

177. See Perin v. Carey, 65 U.S. (24 How.) 465, 501 (1860).

178. Pan-American Petroleum & Transp. Co. v. United States, 273 U.S. 456, 506 (1927). Slightly in more specific terms, Justice Holmes said in Beasley v. Texas & Pac. Ry. Co., 191 U.S. 492, 478 (1903), that if an injunction would be against public policy it will not be issued. Justice Stone wrote that equity will not aid one who uses a patent in restraint of trade. See Morton Salt Co. v. Suppiger Co., 314 U.S. 488, 493 (1942).

179. In Barrows v. Jackson, 346 U.S. 249, 258 (1953), the Court held that it would be against the public policy of the United States to permit courts to exercise general equity powers to compel state courts to act, where state action has been found to be against equal protection.

180. See I.N.S. v. Pangilinan, 486 U.S. 875, 883 (1988).

181. See Golden State Bottling Co., Inc. v. NLRB 414 U.S. 168, 179-80 (1973). Justice Reed in Hybes v. Grimes Packing Co., 337 U.S. 86, 126 (1949), said that equity protects public policy.

182. See The Kennsington, 183 U.S. 263, 269-74 (1902), which held that the law of a foreign country will not vary from United States public policy. In Bond v. Hume, 243 U.S. 15, 22 (1917), Chief Justice Edward D. White wrote:

[A]s it is peculiarly within the province of the law-making power to define the public policy of the State, where that power has been exerted in such a way as to manifest that a violation of public policy would result from the enforcement of a foreign contract validly entered into under a foreign law, comity will yield to the manifestation of the legislative will and enforcement will not be permitted.

To like effect, see the concurring opinion of Justice Stone in Bradford Elec. Light Co. v. Clapper, 286 U.S. 145, 163 (1932).

183. See Guaranty Trust Co. of N.Y. v. United States, 304 U.S. 126, 131 (1938).

184. See Williams v. Conger, 125 U.S. 397, 409 (1888).

185. See FERC v. Mississippi, 456 U.S. 742, 760 (1982).

186. See, e.g., Martin v. Wilks, 490 U.S. 755, 760 (1989). See also Bangor Punta Operations v. Bangor & Aroostook R.R. Co., 417 U.S. 703, 713 (1974). Public policy, however, does not differentiate among larceny, murder and assault. See Jones v. United States, 463 U.S. 354, 365 (1983).

187. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 264 (1975). Cf. Chambers v. Nasco, Inc., 501 U.S. 32-52 (1991).

188. Broderick v. Rosner, 294 U.S. 629, 642 (1935). Justice Douglas said in North Dakota State Bd. v. Snyder's Drug Stores, Inc., 414 U.S. 156, 167 (1973), that two opposing views of public policy are considerations for legislative choice.

189. See supra note 75. The District of Columbia, territories, counties and municipalities may make public policy. See supra note 75.

190. See UAW v. Wisconsin Employment Relations Bd., 351 U.S. 266, 274 (1956); Sola Elec. Co. v. Jefferson Electric Co., 317 U.S. 173, 177 (1942); Adams Express Co. v. Croninger, 226 U.S. 491, 506 (1913); Pennsylvania R.R. Co. v. Hughes, 191 U.S. 477, 486 (1903); Hartford Fire Ins. Co. v. Chicago, Minneapolis & St. Paul Ry. Co., 175 U.S. 91, 100 (1897). The United States Supreme Court has made it clear, however, that it is not the function of the courts to "even remotely hint at agreement or disagreement with what has commended itself" to the States. International Bhd. v. Hanke, 339 U.S. 470, 478 (1950). Nor is it the function of federal agencies to do so. See NLRB v. Gullet Gin Co., Inc., 340 U.S. 361, 365 (1951).

191. In Vogel v. Gruaz, 110 U.S. 311, 315 (1884), an Illinois statute made it "the duty of each State's attorney to 'commence and prosecute' all criminal actions, suits, indictments, and prosecutions, in any court of record in his county, in which the people of the State or county might be concerned." The Court said that "[u]nder this provision it was the province and the privilege of any person who knew of facts tending to show the commission of a crime, to lay those facts" before the appropriate state attorney. Id.

192. In Vogel, the Court said that "general grounds of public policy" make it "the duty of every citizen to communicate to his government any information which he has of the commission of an offence against its laws; and that a court of justice will not compel or allow such information to be disclosed." Id. at 316. In F.D. Rich Co. v. United States, 417 U.S. 116, 126, 129 (1974), a state's public policy authorized the award of attorney's fees, but the Court held that the federal act pre-empted the State policy. Cf. Bradley v. School Bd., 416 U.S. 696 (1974).

193. This expansion is usually through judicial interpretation. Thus, in Vogel, the Court found from the original public policy created by the statute, another public policy of "protection" (whatever that may mean specifically), of "all such communications, absolutely, and without reference to the motive or intent of the informer or the question of probable cause." Vogel, 110 U.S. at 315. The Court justified such extension on the basis "that greater mischief will probably result from requiring or permitting them to be disclosed than from wholly rejecting them." Id. at 316. Public policy, according to the Court, makes the relation between the prosecutor and the informant "more sacred" because there is no payment for the information. See id. at 315. The question which arises from such language, of course is, does this judicial construction create a new public policy by the court.

194. In Amalgamated Ass'n v. Wisconsin Employment Relations Bd., 340 U.S. 383, 394 (1951), Wisconsin's Public Utility Anti-Strike Law which declared a public policy to prevent a halt in service by two utility companies, under which injunctions were issued, was declared invalid because it infringed on a field of legislation already occupied by federal legislation. Justice Frankfurter dissented, joined by Justices Burton and Minton, because he thought that the state's public policy should prevail. See Amalgamated Ass'n, 340 U.S. at 401.

195. See Harris v. Runnels, 53 U.S. (12 How.) 79, 83, 87 (1851). The plaintiff sued on a note which the defendant gave him. See Harris, 53 U.S. at 79. The defense was that the contract under which the note was given was void as in contravention of public policy. See id. at 86. The Court found an exception to the public policy principle hence, ruled that there was no conflict of policies. See id.

196. See Still v. Norfolk & W. Ry. Co., 368 U.S. 35, 38 (1961) (holding that the policy of furnishing railroad workers a right of action for injuries sustained through negligence prevails over a "general" public policy against fraud in job procurement). In Adams Express Co. v. Cronigner, 226 U.S. 491, 506 (1913), it was established that Congress has the authority to make a rule that will prevent local public policy from taking effect.

197. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 139 (1973).

198. Awarding triple damages to a wrongdoer offends public policy, but the public policy in favor of competition overrules it. See Perma Life Mufflers, Inc v. International Parts Corp., 392 U.S. 134, 138 (1968).

199. In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436 (1964), the public policy of this country and its constituent states was primed by the Act of State Doctrine. In Ingersoll Rand Co. v. McClendon, 498 U.S. 133, 136 (1990), public policy primed the traditional discharge-at-will doctrine. In Northwestern Mut. Life Ins. Co. v. McCue, 223 U.S. 234, 245-46 (1912), the constitutionally protected right of contract was overridden by the public policy against the ability to freely contract for the commission of a crime.

200. In Merrill Lynch, 414 U.S. at 133, it was held that a state statute which afforded a terminated employee a right of action against his former employer for the recovery of profit sharing plan benefits primed a strong state public policy favoring arbitration. It should be noted that the Securities and Exchange Act of 1934 under which the New York Stock Exchange, as part of its self-policing policy proclaimed arbitration as the method of settling controversies between its members and their employees did not pre-empt the state statute. See id. at 135.

201. Justice Butler has stated that the right of contract is "part of the liberty protected by the due process clause." Advance-Rumely Thresher Co., Inc. v. Jackson, 287 U.S. 283, 288 (1932). See also Justice Roberts' reference to "the contract clause of the Constitution" in Indiana v. Brand, 303 U.S. 95, 100 (1938).

202. See Brand, 303 U.S. at 100. Justice Brennan has opined that: "[t]he benefits of most public policy changes accrue not only to the undifferentiated 'public', but more directly to particular individuals or groups. Like a promise to lower taxes, to increase efficiency in government or indeed to increase taxes in order to provide some group with a desired public benefit or public service." See Brown v. Hartlage, 456 U.S. 45, 58 (1982).

203. Hartford Fire Ins. Co. v. Chicago, Minneapolis & St. Paul Ry. Co., 175 U.S. 91, 106 (1897) (quoting Griswold et al. v. Illinois C.R. Co., St. N.W. 843, 844 (1849)). Justice McReynolds in A.C. Frost & Co. v. Coeur d'Alene Mines Corp., 312 U.S. 38, 44 (1941) referred to the basis underlying a certain policy as "protean." Justice Sutherland in Funk v. United States, 290 U.S. 371, 381 (1933), wrote: "public policy of one generation may not, under changed conditions be the public policy of another." See also Patton v. United States, 281 U.S. 276, 306 (1930).

204. The extent to which public policy was changed on September 22, 1862 when President Lincoln issued the Emancipation Proclamation, or even as of January 1, 1963, effective was nil as far as the governments of the states in rebellion. As far as the rest of the Union, however, the proclamation was the first announcement as to what the war was about. "Lincoln's Cabinet had been divided, from the beginning, on the advisability of pronouncing officially in favor of emancipation. Yet public opinion in the North was becoming increasingly insistent on some declaration of policy, and the danger of foreign intervention furnished a persuasive argument for rallying English support to the North by making the war openly one for freedom." Henry Steele Commager, The Blue and the Gray 1088 (1950).

205. The Eighteenth Amendment (Prohibition) , ratified in 1919, was effective in 1920. The Nineteenth Amendment (Womens' voting rights), was ratified in 1920. These changes occurred in what Huxley called the "erotic revolt." Guinevera A. Nance, Aldous Huxley 23 (1988). Not all jurists or legislatures were ready to extend womens' right to vote past the narrow confines of suffrage. The Massachusetts Supreme Court, in Commonwealth v. Welosky, 177 N.E. 656, 661 (Mass. 1931), held that the policy represented by the Nineteenth Amendment was insufficient to alter a jury qualification statute that did not mention women. Chief Justice Rugg wrote: "[t]he change in the legal status of women wrought by the nineteenth Amendment was radical, drastic and unprecedented. While it is to be given full effect in its field, it is not to be extended by implication. It is unthinkable that those who first framed and selected the words for the statute . . . had any design that it should ever include woman within its scope." The Massachusetts legislature did not get around to amending the statute until 1949.

206. "Prohibition, passed into law in 1919 and not repealed until 1933, was a joke in most urban America, but in New York it was an all-out full-scale farce." Ann Douglas, Terrible Honesty 24 (1995).

207. See Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932).

208. Mencken wrote: "It always distresses me to hear of a man changing his opinions, so I never seek conversions. My belief is that every really rational man preserves his major opinions unchanged from his youth onward. When he vacillates it is simply a sign that he is stupid." The Diary of H.L. Mencken 133 (Charles A. Flecher ed., Alfred A. Knopf, 1989).

209. One wonders if Mencken ever considered Raskolnikov's rejuvenation. See Fyodor Dostoevsky, Crime and Punishment, Epilogue II (Constance Garnett trans. Random House 1950).

210. See the Appendix to this paper.

211. In addition to the issues alluded to in this paper (see supra text preceding note 2), the Supreme Court has agreed to hear during the October, 1998 Term cases involving such profound matters as student harassment, the right of police to break up the loitering of gangs in public places, and the right of guests' privacy. See also note 252, infra.

212. See note 239, infra.

213. This may be subject to debate. On October 23, 1998 Dexter Douglas, Chairman of Florida's Constitutional Revision Commission, made a statement on public television that the raison d'etre of the Commission and the reason it had recommended thirteen amendments to Florida's constitution, to be voted on by the people of the State on November 3, 1998, was that the State Legislature was so fragmented and politicized that it is incapable of passing into statutes many of the provisions which are being proposed as constitutional amendments.

214. The impact of cyberspace is only incidental to the problem.

215. James Madison, writing in The Federalist, met the criticism, that the lower house would not be representative of all the people with the following words:

The third charge against the House of Representatives is that it will be taken from that class of citizens which will have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few.

Of all the objections which have been framed against the federal Constitution, this is perhaps the most extraordinary. Whilst the objection itself is leveled against a pretended oligarchy, the principle of it strikes at the very root of republican government.

The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.

The Federalist No. 57, at 350 (James Madison) (Clinton Rossiter ed., 1961).

216. Alexis de Tocqueville, Democracy in America, ch. 2 (1835). He continued: "[a]s for particular privileges granted to towns, families, or individuals, they have forgotten the possibility of such things. It has never come into their heads that one cannot apply the same law uniformly to all the parts of one state and all the men living in it." Id.

217. Bernard DeVoto, The Year of Decision 1846 136 (1943).

218. Lincoln had achieved a control over the war governors, which lead to a weakening of the states' rights.

[S]tates' rights were dead. Their death was clear in January 1865 as the legislatures met and the governors, old and new, spoke again on the state of the Union. The contrast with 1861 was significant of the changes the war had wrought. In the January after Lincoln's first election the governors had given directions to the President-elect on the policies of his administration. Recognizing that they were the true spokesmen of the victorious party, and that Lincoln was President only by virtue of their successes in the states, they had forbidden compromise and called for war. But by January 1865 experience had chastened the governors, and the torch of leadership had passed from their hands.

William B. Hesseltine, Lincoln and the War Governors 386-87 (1948).

219. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 228 (1977). Specifically as to the right of Congress to fix national public policy see Dunn v. Commodity Futures Trading Comm'n, 519 U.S. 465 (1997); Bennett v. Kentucky Dept. of Educ., 470 U.S. 656, 668 (1985); Park 'N Fly, Inc. v. Dollar Park And Fly, Inc., 469 U.S. 189, 193 (1985); Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932); I.N.A. v. Miranda, 459 U.S. 14, 19 (1982); Sweet v. United States, 245 U.S. 563, 567 (1918).

220. Indeed it could be said that a legislator who holds the aims of society as a whole higher than those who are responsible for her occupying the position, is an irresponsible legislator. When the headquarters of the Space Program was transferred from Florida to Texas, any Texas Congressperson or Senator who would take a position advocating keeping those headquarters in Florida, would not only be in jeopardy of soon losing her seat, but really would not be properly representing the interests of her constituencies. Is not an amorphous public policy, therefore, the inevitable result of public policy created by legislative bodies? De Tocqueville expressed this concept in these words: "[in democracies] public favor seems as necessary as the air [the rulers] breathe, and to be out of harmony with the mass is, if one may put it so, no life at all." Alexis de Tocqueville, Democracy in America 618 (Phillips Bradley ed., Alfred A. Knopf, Inc. 1963); see also; Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 792-94 (1985) (acknowledging that various special interest groups attempt to influence public policy through one or more of: political activity, advocacy, lobbying or litigation on behalf of others). The Budget that was signed by President Clinton in October, 1998 was so filled with "pork" from both sides of the aisle that even the Congress that proposed it was unhappy with it.

221. Jean Jacques Rousseau, The Social Contract 231 (Ernest Barber ed., Greenwood Press 1980) (1447).

222. As Mill stated:The natural tendency of representative government, as of modern civilization, is toward collective mediocrity: and this tendency is increased by all reductions and extensions of the franchise, their effect being to place the principal power in the hands of classes more and more below the highest level of instruction in the community.

John Stuart Mill, On Liberty and Considerations on Representative Government (RB McCallum ed., Oxford 1948); see also W.E. Woodward, Bunk 24-55 (Stanley Cohen ed., DeCapo Press 1976) (particularly chapter 3, " The Importance of Being Second-Rate" and chapter 4, "Thinking Done by the Day of the week").

223. Senator Fred Thompson (R. TN) in an address, August 18, 1998, to the American Society of Association Executives in Nashville, TN, said

In 1964, 79% of Americans said they trusted the government to do the right thing; in 1998 only 30%. While our founding fathers may have looked upon a skeptical view of government as healthy to the functions of democracy, the current level of distrust is alarming. Rather than raising their voices in protest, many Americans are simply tuning out.

In a recent poll conducted of registered voters in south Florida, 61 % of those polled thought that the government leaders tell the American people the truth only "some of the time", and 63% said that the government is run by a few "big interests, looking out for themselves." Linda Kleindienst and Buddy Nevins, Voters Think Government is Out of Control, Poll Finds, The Sun Sentinel, August 20, 1998, at A1.

224. Mill, supra note 222, at 182-83. He continued:

if the conduct of human beings was determined by no other interested considerations than those which constitute their "real" interest, neither monarchy nor oligarchy would be such bad governments as they are; for assuredly very strong arguments may be, and often have been, adduced to show that either a king or a governing senate are in much the most enviable position, when ruling justly and vigilantly over an active, wealthy, enlightened, and high-minded people. But a king only now and then, and an oligarchy in no known instance, have taken this exalted view of their self-interest . . . .

One of the greatest dangers, therefore, of democracy, as of all other forms of government, lies in the sinister interest of the holders of power: it is the danger of class legislation; of government intended for (whether really effecting it or not) the immediate benefit of the dominant class, to the lasting detriment of the whole. And one of the most important questions demanding consideration, in determining the best constitution of a representative government, is how to provide efficacious securities against this evil.

Id. at 183, 187.

225. Plutarch refers to an oligarchy as a place in which the people were "but little concerned in public business." Plutarch, The Lives of the Nobel Grecians and Romans, Dion; see also Aristotle, Politics (Benjamin Jonett Trans, Random House 1943); The Dialogues of Plato (B. Jonett Trans, Random House 1943).

226. In Aristotle's time the rulers of an oligarchy were men possessing wealth through property. See id. The American oligarchy is ruled by men and women possessed of wealth in the form of influence. Aristotle considered whether the best form of government is an oligarchy in which only the good rule, but from an abstract point of view, he rejected that concept. If only the few good were to rule, the multitude would be by-passed, and if only the best were chosen, a monarchy would result. The situation would not be improved if only the law itself were to rule. From a doctrinaire point of view a democracy is the best form of government, but one not lacking in difficulties. See generally Aristotle, supra note 225. Thucydides preferred an oligarchy to the "rascally" democracy. Thucydides: The History of the Peloponnesian War, Bk. VIII, ch. XXV.

227. "A constitution is the arrangements of magistracies in a state, especially of the highest of all. The government is everywhere sovereign in such a state and the constitution is, in fact, the government." Aristotle, supra note 225 at 136. That government which highly regards the permanence of the constitution is best. See generally id.

228. "[T]he . . . constitution may incline to democracy, but may be administered in an oligarchical spirit." Id. at 181.

229. Id. Bk. II, ch.6; Bk. IV, ch.9.

230. See Mencken, supra note 208.

231. See id.; Aristotle, supra note 225. The ruling class, however, is not always humane. "The desire of life and health is implanted in man's nature;-the love of liberty and enlargement is a sister-passion to it." Laurence Sterne, Tristam Shandy 80 (The Modern Library 1928). "When a man gives himself up to the government of a ruling passion-or, in other words, when his Hobby-Horse grows headstrong,-farewell cool reason and fair discretion!" Id. People still wrestle with the Common Good. On September 24, 1998, the South Texas Law Review sponsored a seminar on "The Lawyer's Duty to Promote the Common Good."

232. See Aristotle, supra note 225.

233. See id. Plato contemplated inequality of treatment based on wealth and power. See generally Plato, supra note 225; Adam Smith in The Wealth of Nations, (Edwin Cannon ed., The Modern Library 1937) emphatically reminds us that since the age of shepherds an inequality of fortune has shown itself and virtually demanded that certain authority and subordination which we call government. "Tis a paralogism to say, that the good of the individual ought to give way to that of the public: this can never take place, but when the government of the community, or, in other words, the liberty of the subject is concerned." Charles, Baron de Montesquieu, The Spirit of Laws 364 (David W. Carrithers ed., Univ. of Cal. Press 19)).

234. The policy of unequal distribution of benefits.

235. Aristotle, supra note 225, at 155. Aristotle considered that the best form of government was one "administered by the best, and in which there is one man, or a whole family, or many persons, excelling all the others together in virtue, and both rulers and subjects are fitted, the one to rule, the others to be ruled, in such a manner as to attain the most eligible life." Id. at 167. Herodotus said that in oligarchies men view with other in the service of the commonwealth. In democracies, malpractices are inevitable. Monarchy is the best form of government. The History of Herodotus 146 (Manuel Komroff ed. & George Rawlinson Trans., Turod Publ'g Co. 1956). "Great is the advantage which a monarchical government has over a republic: as the state is conducted by a single person, the executive power is thereby enabled to act with greater expedition." Montesquieu, supra note 233, at 144.

236. John Locke noted that there is not much to fear in this representative form of government when the members of the legislative body constantly are subject to change:

it is a mistake to think that the supreme or legislative power of any commonwealth can do what it will, and dispose of the estates of the subject arbitrarily, or take any part of them at pleasure. This is not much to be feared in governments where the legislative consists wholly, or in part, in assemblies which are variable, whose members, upon the dissolution of the assembly, are subjects under the common laws of their country, equally with the rest.

John Locke, Treatise of Civil Government Letter Concerning Toleration 93 (Charles L. Sherman ed., Irving Publ'g Inc. 1979). Georg Hegel wrote:

[t]o hold that every single person should share in deliberating and deciding on political matters of general concern on the ground that all individuals are members of the state, that its concerns are their concerns, and that it is their right that what is done should be done with their knowledge and volition, is tantamount to a proposal to put the democratic element without any rational form into the organism of the state, although it is only in virtue of the possession of such a form that the state is an organism at all.

George Wilhelm Fredrich Hegel, Philosophy of Right, Third Part (Ethical Life), Sub-Section III (The State) (y) the Legislature, 1821 in Hegel's Philosophy of Right, 200 (T.M. Knox Trans, Oxford Univ. Press 1967).

237. In Bi-Metallic Co. v. Colorado, 239 U.S. 441, 445 (1915), Holmes wrote:

[w]here a rule of conduct applies to more than a few people it is impracticable that everyone should have a first voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.

238. Professors Davis, Hughes and McDougall explain the situation:

The stock-market collapse in 1929 and the ensuing depression did more to alter the public's (and ultimately, therefore, the government's) attitude toward business than any other series of events in the nation's history. It became apparent that, unaided, private enterprise could not solve the unemployment problem; and a series of business scandals shattered whatever was left of the public's belief in the unmitigated wisdom of the business community. Despite the importance of the depression years in shaping public policy, at no time has the federal government exercised greater effect on economic life than during the years of World War II. In an attempt to quickly mobilize the economy for war, the government in part abandoned the free-enterprise system.

Lance E. Davis, Jonathan R.T. Hughes & Duncan M. McDougall, American Economic History 135 (3rd ed. Richard D. Irwin, Inc. 1969).

239. C. Northcote Parkinson probably would not agree. His description of the "will of the people" casts doubt upon the importance to be placed upon such edict. He wrote:

[I]n nearly every . . . controversy to be decided by the will of the people, we can assume that the people who will decide are members of the middle bloc. Delivery of speeches is therefore a waste of time. The one party will never agree and the other party has agreed already. Remains the middle bloc, the members of which divide into those who cannot hear what is being said and those who would not understand it even if they did. To secure their votes what is needed is primarily the example of others voting on either side of them. Their votes can thus be swayed by accident. How much better, by contrast, to sway them by design!

C. Northcote Parkinson, Parkinson's Law and Other Studies in Administration 22-23 (Houghton-Mifflin Company 1957). His words were prophetic. Witness the plethora of State constitutional amendments about which most people have not even the slightest grasp.

240. The horror of the holocaust must have lingered with Camus, as he described the plague of Oran: "No longer were there individual destinies; only a collective destiny, made of plague and the emotions shared by all. Strongest of these emotions was the sense of exile and of deprivation, with all the cross-currents of revolt and fear set up by these." Albert Camus, The Plague 157 (Vantage Books 1972).

241. Tacitus relates that Tiberius "to divert people's talk, continually attended the Senate, and gave audience of several days to embassies from Asia on a disputed question as to the city." Cornelius Tacitus, The Annals, Bk. IV, [55], 69.

242. As Hobbes wrote: "And that such as have a great, and false opinion of their own wisdom, take upon them to reprehend the actions, and call in question the authority of them that govern, and so to unsettle the laws with their public discourse, as that nothing shall be a crime, but what their own designs require should be so." Thomas Hobbes, Leviathan 194 (part II (Of commonwealth) ch. 27) (Michael Oakeshott ed., Oxford 1946).

243. Montesquieu said that, "[i]n all magistracies, the greatness of the power must be compensated by the brevity of duration." Montesquieu, supra note 233, at Bk. II, ch. 4.

244. Cozens-Hardy, M.R. in The Estate of Hall, P. 1, 5 C.A. (1914) wrote: "[y]ou do not look for public policy in the sense which that expression is used in an Act of Parliament. It is something which is really part of the common law of the land, and does not depend upon statute."

245. Justice Story in Proprietors of Charles River Bridge v. Proprietors of Waren Bridge, 36 U.S. (11 Pet.) 420, 596 (1837), observed that a king does not have to take into consideration the rights of his subjects, but in contemplation a "monarch" who is subject to retention or rejection every four years. See supra note 83. Georgia authorizes the executive branch of its government to make public policy. See Chandler v. Miller, 520 U.S. 305 (1997).

246. Harry Truman on at least one occasion vetoed a Bill on the ground of public policy. See Federal Power Comm'n v. Texaco Inc., 417 U.S. 380, 400 (1974). Franklin D. Roosevelt was capable of making public policy.

There was something in the air. A President was running the country the way I felt it should be run. I had been a New Dealer before there was a New Deal. Now we had a caring federal government that worried not about the Rockefellers and the Du Ponts but about elderly indigents, poverty, people's health and housing, and even about former plowboys. Claude Denson Pepper, Pepper Eyewitness to a Century 46 (1987). President Eisenhower thought it proper to withhold information from Congress. Raoul Berger, Executive Privilege: A Constitutional Myth 239-40 (Harvard University Press 1974). John F. Kennedy did not. Arthur M. Schlesinger, Jr., Robert Kennedy and His Times 380 (1978). Kennedy was "an ardent liberal reformer. But he was, in his own phrase, an idealist without illusions." Id. at 601. Richard M. Nixon was a strong President. See infra note 248.

247. Robert H. Birkby, The Court and Public Policy 1 (1983). In his analysis of which branch of government should make public policy, Professor Birkby gives the legislature a slight nod.

Judges in a democratic system appear to feel constrained by the nonrepresentative nature of the judiciary. Judges, even when elected, as some state judges are, do not have the same quality of representativeness that legislators have. This removal from the mainstream of democratically chosen officials makes judges aware that their policymaking position is not as firmly rooted in the "will of the people" as is the legislators'. No judge could ever claim to have a "mandate". The effect of this constraint is difficult to evaluate. Some judges become timid in the face of it; others become defiant, but most become sensitive to the limits of their authority and often express that sensitivity by phrases such as "deference to legislative judgment." A presumed advantage of the nonrepresentative nature of the courts is their insulation from the vagaries and hasty shifts of public opinion and from the pressures of "special interests." But they are vulnerable to attack by majoritarians. The legislature is a better reflector of public opinion while the courts offer an opportunity for a "sober second thought."

Id. at 6-7. It should be remembered, however, that this observation was made in 1930, and its author over-emphasizes public opinion.

248. The Supreme Court is always keenly aware of political and social trends. During the 1950s and 1960s, under the leadership of Chief Justice Earl Warren, the Court had become unprecedentedly politically active. Like many legal and political moderate conservatives, I felt that some Supreme Court Justices were too often using their interpretation of the law to remake American society according to their own social, political, and ideological precepts . . . .

Shortly after I was elected, I asked Bill Rogers to approach Chief Justice Warren and work out an understanding with regard to the timing of his resignation.

Richard M. Nixon, The Memoirs of Richard Nixon 418-19 (1978). Professor Robert H. Birkby would agree with President Nixon to the effect that judges do make policy. He wrote

law, of course is one expression of public policy. This power of the courts to make policy is inherent in the judicial function. Courts have not usurped the power from some other part of government; it is theirs of necessity. The only way to oust the courts from their participation in policymaking would be for other policymakers (especially legislatures) to express their wishes in language specific enough to avoid ambiguity and broad enough to cover every conceivable contingency. But such a state of legislative exactness and prescience never was and never will be.

Birkby, supra note 247, at 1.

249. They cite the aftermath of Furman v. Georgia in 1972 and Roe v. Wade in 1973.

250. Timothy R. Johnson & Andrew D. Martin, The Public's Response to Supreme Court Decisions, Am. Pol. Sci. Rev. 299, 307 (1998).

251. See Paulsen & Sovern, supra note 39, at 987-88.

252. See Anderson v. Carkins, 135 U.S. 483 (1890), This case involved a proclaimed Congressional pronouncement of public policy contained in the homestead statutes. The enterprising litigant wanted to contract away the land subject to the Homestead Act prior to acquiring it. The Court ruled that such an arrangement would violate the policy of the Act, which was to preserve for the homesteader the sole use of the land. It is well known that the homesteading policy was not necessarily the will of the people, but that of a government wanting to see the west developed. James Truslow Adams said that home-steading served to make the west "a creature of the national government." James Truslow Adams, The Epic of America 166 (1941).

253. Not only does public policy serve as authority for rules of decision, but a very subtle aspect of public policy answers our constant need for spiritual help. Former Senator Dan Coats recently wrote, "[w]e need new public policies that empower people, not perpetrate dependence . . . . Any nation that would place the welfare of the family at the center of its social laws and public policies would profoundly touch every citizen at the center of their lives." Dan Coats, From Liberty to Dependencies: Public Policy and the American Family, 69 Notre Dame L. Rev. 1027, 1034 (1994).

254. As Chief Justice Rehnquist pointed out in Washington v. Glucksberg, 521 U.S. 702, 719 (1997), "the states are currently engaged in serious, thoughtful examinations of physician-assisted suicide and other similar issues." He was referring to the fact that a New York Task Force has been appointed to recommend public policy on issues raised by medical advances. California has long encouraged town meeting and referendum methods of inducing people to speak out on matters of public policy. See James v. Valtierra, 402 U.S. 137, 141 (1971); City of Eastlake v. Forest City Enter., Inc., 426 U.S. 668, 672 (1926).

255. See Burt v. Union Cent. Life Ins. Co., 187 U.S. 362, 368 (1902); Hartford Fire Ins. Co. v. Chicago, Minneapolis & St. Paul Ry. Co., 175 U.S. 91, 107 (1897) (where the public has no interest in a contractual provision, public policy is not applicable). See also Justice Black's dissent in Maryland Cas. Co. v. Cushing, 347 U.S. 409, 432 (1954).

256. See American Radio Ass'n, AFL-CIO v. Mobile S.S. Ass'n, 419 U.S. 215, 216 (1974); Standard Oil Co. of N. J. v. United States, 221 U.S. 1, 58 (1911); Railroad Co. v. Manufacturing Co., 83 U.S. 318, 329, (1872).

257. Price v. Gurney, 324 U.S. 100, 106 (1945) (a plan in bankruptcy must comply with public policy).

258. W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 770 (1983); Bob Jones Univ. v. United States, 461 U.S. 574, 582, 593, 595 (1983) (the condemnation of racial discrimination); Price Waterhouse v. Hopkins, 490 U.S. 220, 254 (1989) (gender discrimination); Meyer v. Grant, 486 U.S. 414, 425 (1988) (freedom of speech); Hamm v. City of Rock Hill, 379 U.S. 306, 316 (1965) (The Civil rights Act of 1964 declared the public policy of the country to be against discrimination in public accommodations).

259. Kaiser Steel Corp. v. Mullens, 455 U.S. 72, 77 (1982) (sanctity of indemnity contracts must be preserved); U.S. Gypsum Co. v. National Gypsum Co., 352 U.S. 457, 475 (1975) (contracts to commit murder violate public policy); Brooklyn Savings Bank v. O'Neal, 324 U.S. 697, 709 (1945) (contracts which tend to encourage violation of the law are against public policy); United States v. Ryder, 110 U.S. 729, 735 (1984) (sanctity of indemnity contracts must be preserved).

260. This may manifest in a Dead Man's Statute (See Page v. Burnstine, 102 U.S. 664, 667 (1980)), or it may prevent persons without an insurable interest from insuring a life. See Griffin v. McCoach, 313 U.S. 498, 503 (1941).

261. Minnesota State Bd. v. Knight, 465 U.S. 271, 283 (1984) (the right of a faculty to participate in policy-making in higher education). Abood v. Detroit Bd. of Educ., 431 U.S. 209, 258 (1977) (the educational philosophy that will constitute a high school curriculum is a form of public policy).

262. Smythe v. United States, 188 U.S. 156, 170 (1903) (requiring that every depository of money be held to a strict accountability exercising the highest accountability); United States v. Thomas, 82 U.S. 337, 347, 352 (1872); United States v. Prescott, 44 U.S. 578, 588 (1845); E.E.C. v. Capital Gaines Research Bureau, Inc., 375 U.S. 180, 197 (1963); United States v. Mississippi Valley Generating Co., 364 U.S. 520, 550 (1961) (public policy protects fiduciary relationships).

263. Employment Div. v. Smith, 494 U.S. 872, 884 (1990); Brock v. Pierce County, 476 U.S. 253, 260 (1986); East River Steamship Corp. v. Transamerica Delaval, Inc. 76 U.S. 858, 866 (1986) (protection against dangerous products); Nebbia v. People of the State of N.Y., 291 U.S. 502, 523 (1934); Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U.S. 549, 569 (1911); United States v. Nashville, Chicago & St. Louis R.R. Co., 118 U.S. 120, 125 (1886). See then Justice Rehnquist's observation in Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 775 (1983), that "[t]he question whether the gains from any technological advance are worth its attendant risks may be an important public policy issue." Perez v. Campbell, 402 U.S. 637, 648 (1971) (public policy will not allow irresponsible drivers to injure their fellows with impunity). Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 698 (1962); Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264 (1946) (Wrongdoers bear the risk of the uncertainty which the wrong has created).

264. Usery v. Turner Ellkhorn Mining Co., 428 U.S. 1, 21 (1976).

265. Legal action which would lead to confidential information violates public policy (Weinberger v. Catholic Action, 454 U.S. 139, 146-47 (1981)), unless legislation such as the Freedom of Information Act is passed into law (Baldridge v. Shapiro, 455 U.S. 345, 348 (1982)), or a reasonable or necessary reason exists to enquire (Hickman v. Taylor, 329 U.S. 495, 497 (1947)). The attorney's work product doctrine is a form of public policy. See Upjohn Co. v. United States, 449 U.S. 383, 398 (1981); United States v. Nobles, 422 U.S. 225, 236-40 (1975).

266. United States v. Montalvo Murillo, 495 U.S. 711, 717 (1990) (public interests (e.g. rights, revenues and property), must not be prejudiced by the negligence of public officials); Costello v. United States, 365 U.S. 265, 281 (1961), Brock v. Pierce County, 476 U.S. 253, 259 (1986).

267. Norman v. B. & O. R.R. Co., 294 U.S. 240 (1935); Thomas v. City of Richmond, 79 U.S. 349 (1870); This would include oversight of the thrift industry. See United States v. Gaubert, 499 U.S. 315, 332 (1981).

268. There is a public policy which encourages government agencies to feel free to ask for legislation in their interest. See F.T.C. v. Dean Foods Co., 384 U.S. 597, 610 (1966).

269. Protection of public officials who are required to exercise their discretion. See Cleavinger v. Saxner, 474 U.S. 193, 201-202 (1985); Malley v. Briggs, 475 U.S. 335, 335 (1986); Nixon v. Fitzgerald, 457 U.S. 731, 744, 747 (1982); Owen v. City of Independence, 445 U.S. 622, 652 (1980); Butz v. Economou, 438 U.S. 478, 506 (1978); Hyer v. Richmond Traction Co., 168 U.S. 471, 485 (1897) (when several people seek a franchise from the legislature, but see fit to use the name of only one, they must rely on that person's good faith).

270. Meese v. Keene, 481 U.S. 465, 477 (1987) (injunction against political propaganda); Block v. North Dakota, 461 U.S. 273, 289 (1983) (protection against the negligence of public officials); United States v. Moore, 423 U.S. 77, 82 (1975) (the priority statute).

271. W.R. Grace & Co. v. Rubber Workers 759, 461 U.S. 757, 766 (1983). This would include maintaining the purity of the courts; see the dissenting opinion of Justice Roberts in Sorrells v. United States, 287 U.S. 435, 456 (1932), in which Justices Brandeis and Stone concurred; see also Reno v. Bossier Parish School Bd., 520 U.S. 471 (1997) (conserving the judicial system is part of the national public policy); Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994) (voluntary resolution of disputes); Bateman Eichler Hill Richards, Inc. v. Berner, 472 U.S. 299, 306 (1985) ("out of fraud no action arises").

272. There is a public policy against accepting kickbacks in connection with government contracts. See United States v. Acme Process Equip. Co., 385 U.S. 138, 146 (1966).

273. In Marshall v. Baltimore & Ohio R.R. Co., 57 U.S. 314, 334 (1853) Justice Grier said,

[p]ublic policy and sound morality do therefore, imperatively require that courts should put the stamp of their disapprobation on every act, and pronounce void every contract he ultimate or probable tendency of which would be to sully the purity or mislead the judgments of those to whom the high trust of legislation is confided.

274. Guaranty Trust Co. v. United States, 304 U.S. 126, 132 (1938) (preserved the public rights, revenues, and property from loss); Williams v. Conger, 125 U.S. 397, 410 (1888) (that there be maintained a system of public records); ProvidenceTool Company v. Norris, 69 U.S. 45, 54 (1864) (promote the most efficient and economic mode of meeting the public wants); the Priority Statute ("Insolvency"), Statute (42 U.S.C. § 3713), has public policy as its basis. United States v. State Bank of North Carolina, 31 U.S. 29, 34 (1832) (defining the "motives of public policy" which underlie the priority statutes of the Federal government to be "in order to secure as adequate to sustain the public burdens and discharge the public debts"); see also Commonwealth of Mass. v. United States, 333 U.S. 611, 638 (1948); United States v. Moore, 423 U.S. 77, 82 (1975).

275. Newport v. Fact Concerts, Inc. 453 U.S. 247, 271 (1981) (public property cannot be seized without government's consent); California v. Arizona, 440 U.S. 59, 61 (1979) (public policy provides that a municipality is immune from punitive damages under 42 U.S.C. § 1983); Imbler v. Pachtman, 424 U.S. 409, 424 (1976); Wood v. Strickland, 420 U.S. 308, 318 (1975); Armstrong v. United States, 364 U.S. 40, 43 (1960); Larson v. Domestic & Foreign Corp. 337 U.S. 682, 704 (1949).

276. There is public policy which supports national development and federal tax collection. See S.R.A., Inc. v. Minnesota, 327 U.S. 558, 569 (1946).

277. See Bond v. Floyd, 385 U.S. 116, 125 (1966) (the carrying on of business with the enemy during war violates public policy); see also Coppell v. Hall, 74 U.S. 542, 557 (1868).

278. Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 580 (1908) (restrictions imposed on the rights of foreign creditors to attach property).

279. See supra note 8.

280. Nebbia v. New York, 291 U.S. 502, 528 (1934); but cf. Atlantic & Pac. R.R. Co. v. Mingus, 165 U.S. 413, 437 (1897) (public policy requires that Indians cede their land willingly); see also Chicago Life Ins. Co. v. Needles, 113 U.S. 574, 584 (1885) (the contract of a corporation cannot be forced to have perpetuity of existence); Christian Union v. Yount, 101 U.S. 352 (1879) (property cannot be held in perpetuity). There is public policy against restraints on alienation of property. See Barrows v. Jackson, 346 U.S. 249, 258 (1953).

281. Public policy demands that mineral lands be regulated. Hickel v. Oil Shale Corp., 400 U.S. 48, 53 (1970); Work v. Louisiana, 269 U.S. 250, 258 (1925); United States v. Sweet, 245 U.S. 563, 567 (1918).

282. Transparent Wrap Machine Corp. v. Stokes & Smith Co., 329 U.S. 637, 643 (1947) (prevention of monopolies by patent holders); Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806, 819 (1945) (there is a public policy against the assertion and enforcement of patent claims infected with fraud and perjury); McCullough v. Kammerer Corp., 323 U.S. 327, 327 (1945); Morton Salt Co. v. G.S. Suppiger Co. 314 U.S. 488, 492 (1942); Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 173, 177 (1942); Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 422, 427 (1908) (protection of patent holders).

283. Public policy provides that holders of trade marks be kept within proper bounds. See Ford Motor Co. v. United States, 405 U.S. 562, 576 (1972).

284. Clarke v. Securities Ind. Ass'n, 479 U.S. 388, 396 (1987) (banks must be limited to banking); Association of Data Processing Inc., v. Camp, 397 U.S. 150, 155 (1970).

285. It is the public policy of the country for the States to exert control over corporations. See Chicago Life Ins. Co. v. Needles, 113 U.S. 574, 579 (1985) (dictum) (domestic corporations); National Mut. Bldg. & Loan Ass'n of N.Y. v. Braham, 193 U.S. 635, 649 (1904) (foreign corporations).

286. Lathrop v. Donohue, 367 U.S. 820, 825 (1961) (public policy calls for integration of the Bar).

287. The licensing of business is based on the public policy of regulating business. See The License Tax Cases, 72 U.S. 462 (1866).

288. See Consolidated Edison Co. of New York, Inc. v. Public Serv. Comm'n of New York, 447 U.S. 530, 549 (1980); National Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 690 n.15 (1978) (the enhancement of prices, contracts or acts which restrict competitive conditions are public policies); Federal Trade Comm'n v. Cement Inst., 333 U.S. 683, 690 (1948) (as early as 1920 the U.S. Supreme Court has "considered it an 'unfair method of competition' to engage in practices 'against public policy because of their dangerous tendency to hinder competition or create monopoly'" (quoting Federal Trade Comm'n v. Gratz, 253 U.S. 421, 427 (1920))); United States v. Line Materials Co., 333 U.S. 287, 308 (1948) (public policy has condemned monopolies for years); Nebbia v. People of New York, 291 U.S. 502, 528 (1934); United States v. Trans-Missouri Freight Ass'n 166 U.S. 290, 328 (1897). See also Mitsubishi Motor Corp. v. Sorer Chrysler-Plymouth, 473 U.S. 614, 637 (1985) (Stevens, J., dissenting); Perma Life Mufflers, Inc. v. Int'l Parts Corp., 392 U.S. 134, 138 (1968) (promote competition); Louisville & N.R. Co. v. Commonwealth of Ky., 161 U.S. 677 (1896) (a state public policy against consolidation of railroads).

289. Ricci v. Chicago Mercantile Exch., 409 U.S. 289, 300 (1973); Silver v. New York Stock Exchange, 373 U.S. 341, 348, 356, 360, 366 (1963) (public policy requires that the stock exchanges regulate themselves).

290. Garner v. Teamsters, Chauffers and Helpers Local Union No. 776 (A.F.L.), 346 U.S. 485, 497 (1953) (collective bargaining is encouraged); Bay Ridge Operating Co., Inc. v. Aaron, 334 U.S. 446, 463 (1948). United Mine Workers of America Healthland Retirement Funds v. Robinson, 455 U.S. 562, 569 (1982) (public policy dictates a limited role in reviewing collectively bargained agreements).

291. See Price Waterhouse v. Hopkins, 490 U.S. 228, 254 (1989) (that whistle blowers be protected); I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1047 (1984) (aliens' unregistered presence in the U.S.); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) (make employees whole after an unfair labor practice); N.L.R.B. v. J.H. Rutter-Rex Mfg. Co., Inc., 396 U.S. 258, 263 (1970); NLRB v. Strong, 393 U.S. 357, 358 (1969); Brotherhood of Locomotive Firemen and Enginemen v. Chicago, R. I. & P. R. Co. 393 U.S. 129, 137 (1969) (providing for the safety of railroad employees).

292. Still v. Norfolk & W. Ry. Co., 368 U.S. 35, 38 (1961).

293. The minimum wage is a public policy. D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 116 (1946).

294. N.L.R.B. v. Industrial Union of Marine and Shipbuilding Workers of America, AFL CIO Local 22, 391 U.S. 418, 425-26 (1968) (union members are protected against being penalized for filing an unfair labor practice charge with the N.L.R.B.)

295. Kansas City S. Ry. Co. v. Van Zant, 260 U.S. 459, 468 (1923); Liverpool & Great Western Steam Co. v. Phoenix Ins. Co., 129 U.S. 397, 442 (1889) (Bills of Lading with no-liability clauses offend public policy).

296. Nebbia v. People of New York, 291 U.S. 502, 536 (1934).

297. The early cases reflected considerable conflict within the Court as to what was public policy with reference to tariffs. In Boston & M. R.R. v. Hooker, 233 U.S. 97 (1914), the Court held that a railroad was permitted to change a tariff without notifying its passengers of the change. Justice Pitney, in dissent, saw a violation of public policy in such procedure. See id. at 127, 132. That conflict does not appear to be present in the relatively few cases decided by the Court in this area. See Southern Pac. Transp. Co. v. Commercial Metals Co., 456 U.S. 336, 337, 347 (1982).

298. Ritter v. Mutual Life Ins. Co. of New York, 169 U.S. 139, 157 (1898) (public policy dictates that an insurance policy is void if the insured commits suicide), followed by Whitfield v. Aetna Life Ins. Co. of Hartford, 205 U.S. 489, 501 (1907).

299. See Waters v. Merchants' Louisville Ins. Co., 36 U.S. 213 (1837) (a person may insure himself for any peril not occasioned by his own fault).

300. In other words, res judicata. See James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 542 (1991); Tanner v. United States, 483 U.S. 107, 120 (1987); Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981); Durfee v. Duke, 375 U.S. 106, 111 (1963); Commissioner of Int. Rev. v. Sunnen, 333 U.S. 591, 597 (1948); Heiser v. Woodruff, 327 U.S. 726, 732 (1946); Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314 (1945).

301. It is against public policy for the federal courts to interfere with state court proceedings. Younger v. Harris, 401 U.S. 37, 43 (1971).

302. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 5, 9 (1972) (agreements to oust the courts of jurisdiction are against public policy).

303. Hickman v. Taylor, 329 U.S. 495, 510 (1947)

304. Brody v. United States, 77 S. Ct. 910, 911 (1957) ("One of the most obdurate defects in our administration of justice is delay. Due regard for its avoidance is emphasized in a situation like the present where the extension requested would make disposition of the petition for certiorari go over into the next Term of Court.")

305. Partmar Corp. v. Paramount Pictures Theatres Corp., 347 U.S. 89, 90 (1954).

306. See G.D. Searle & Co. v. Cohen, 455 U.S. 404, 408 (1982) (statute of limitations represent a reflection of public policy).; United States v. Marion, 404 U.S. 307, 323 (1971). See also Justice Stevens' dissent in Plant v. Spendthrift Farm, Inc., 514 U.S. 211, 265, n.20 (1995) (Stevens, J., dissenting).

307. Perma Life Mufflers, Inc. v. Int'l Parts Corp., 392 U.S. 134, 138 (1968).

308. Travis v. United States, 364 U.S. 631, 634 (1961) (venue is a matter of public policy).

309. United States v. Ryder, 110 U.S. 729, 735 (1884).

310. One 1958 Plymouth Sedan v. Commonwealth of Pa., 380 U.S. 693, 699 (1965) (public policy dictates that possession of contraband is illegal).

311. Commissioner of Int. Rev. v. Tellier, 383 U.S. 687, 694 (1966).

312. Sorrells v. United States, 287 U.S. 435, 444-45 (1932).

313. Matters concerning extradition are governed by public policy. United States v. Mauro, 436 U.S. 340, 363 (1978); Carter v. United States, 75 S. Ct. 911 (1955).

314. Public policy prohibits disclosure of an informer's identity. Roviaro v. United States, 353 U.S. 53, 61 (1957).

315. See Walton v. Arizona, 497 U.S. 639, 682 (1990) (Blackmun, J., dissenting) (stating that there is a public policy favoring individual sentencing in non-capital cases).