You've got mail--but no privilege

By Dean Victor J. Gold

Evidentiary privileges protecting communications with your lawyer, spouse, doctor, clergy, psychotherapist, and others apply only if you intended those communications to be confidential. But be wary of sending any of these folks an email from your work computer or a smartphone supplied by your employer. A recent decision by the California Court of Appeals suggests that communications to and from such devices are not privileged.

In Holmes v. Petrovich Development Company, ---Cal.Rptr.3d---, 2011 WL 117230 (Cal.App.3d, 2011), an employee brought a wrongful termination action against her employer. During her deposition, plaintiff was questioned by the company about emails she sent to her lawyer using the company's computers. She objected, claiming that the emails were protected by the attorney-client privilege. The trial court overruled her objection, and the Court of Appeals agreed, holding that the employee did not intend the emails to be confidential since (1) the computer on which they were sent belonged to the company, (2) the company advised its employees that emails might be monitored, and (3) the employee knew of this policy and agreed to it. The Court of Appeals rejected as immaterial the employee's understanding that the company did not, in fact, monitor employee emails, reasoning:

Just as it is unreasonable to say a person has a legitimate expectation that he or she can exceed with absolute impunity a posted speed limit on a lonely public roadway simply because the roadway is seldom patrolled, it was unreasonable for [the employee] to believe that her personal e-mail sent by company computer was private simply because, to her knowledge, the company had never enforced its computer monitoring policy.

For two reasons, the scope of this ruling is broader than might first appear. First, plaintiff did not lose her privilege because she was using a computer that happened to be owned by the very company who was to become her opponent in the lawsuit. Under the court's reasoning, confidentiality would have been lost even if her employer had nothing to do with the lawsuit. Holmes relies on section 952 of the California Evidence Code, which defines "confidential communication" between client and lawyer as one that is transmitted "by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation." Thus, there is no confidential communication even if the employer that owns the computer is just a disinterested third person. Second, the circumstances faced by the employee in Holmes are commonplace. Many, if not most, employers advise employees that emails sent from employer-owned devices may be monitored. This is because employers want to discourage personal use of company property and want to ensure that they retain the ability to police for serious abuses, such as the use of company computers for illegal purposes. But as in Holmes, most employers do not regularly monitor employee email because serious abuses are uncommon and the cost of regular monitoring is high. Most employees are aware there is no regular monitoring of their work devices and, consequently, use them both for work and personal purposes. This includes sending and receiving communications that employees expect are confidential. Holmes undermines this expectation.

The reasoning of the Holmes decision is questionable, based on a misleading analogy to the motorist who exceeds the speed limit on an unpatrolled roadway. In the case of the motorist, the pertinent legal question is only whether she exceeded the speed limit--her expectations concerning the chances of being caught are no defense. But in the case of a confidential communication privilege, the expectations of the client, spouse, patient, and penitent are key. If she had a reasonable expectation of confidentiality, the privilege applies. What is reasonable becomes, as always, a matter of weighing the applicable facts and circumstances. Those should include not just the fact that an email could be monitored, but also the chances that it would be. It seems likely that most employees would be surprised to learn that they cannot send a confidential communication to their spouse, lawyer, or doctor with an employer-supplied device.

Confidential communication privileges exist to foster relationships thought vital to society. Because the pertinent circumstances of Holmes are so common in the modern workplace, that decision poses a significant challenge to the efficacy of those privileges.

The Preclusive Effect of a Federal Court Denial of Class Certification

By Professor Georgene Vairo

My colleagues, Michael Waterstone and David Horton have already weighed in on two of the big three class action cases before the Supreme Court this term. I will talk about the third.

Provocatively but aptly titled "Will arbitration kill the consumer class action?", David's article noted that in AT&T v. Concepcion, the Supreme Court will decide whether the Federal Arbitration Act (FAA) preempts state courts from striking down class arbitration waivers under the unconscionability doctrine. As he put it, "contract procedure" enthusiasts are on the edge of their seats anxiously awaiting the Court's ruling. The Court will have to balance its general trend in favor of favoring arbitration against it's the ideals of federalism which should enable state's to provide their citizens with greater protections than those afforded by federal law.

Michael talked about Wal-Mart v. Dukes, which is likely to have huge implications for both employment discrimination and class action law. Plaintiffs are a class of female Wal-Mart employees alleging sex discrimination. The Ninth Circuit whittled down a class of about 1.5 million employees to 500,000. Yet, the class still may be the largest-ever gender bias class action case. The Supreme Court's order granting certiorari looks at two important questions: 1) whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)--which by its terms is limited to injunctive or corresponding declaratory relief--and, if so, under, what circumstances?

The answer to this question will resolve a circuit split on the issue of to what extent monetary damage claims are allowable in a 23(b)(2) class action; and 2) whether, when determining whether a Rule 23(b)(2) class may be certified when the plaintiffs' evidence--including statistical proof of disparities between men and women, anecdotal evidence, and expert proof on social framework analysis showing susceptibility to gender bias in the management structure--arguably establishes a common issue, as required under Rule 23(a), of a corporate-wide policy of discrimination? Attorneys who practice discrimination law of any type as well as all class action lawyers await the Court's answers to these questions because they will go a long way in determining the contours, in terms of size and remedies, that will be available to plaintiff classes in the future.

Informational privacy in 2011

By Associate Professor Aaron Caplan

Two cases on this year's U.S. Supreme Court docket examine informational privacy under the Constitution. Although definitions vary, informational privacy is ordinarily used to mean the ability of individuals to control the gathering, use, and distribution of information about them by others. The first case, NASA v. Nelson, has already been decided. It extends a long-standing stalemate on whether a person has a due process right to keep certain information private from the government. The second case, Sorrell v. IMS Health Inc., will be argued later this year. It asks whether data brokers and drug companies have a constitutional right to buy and sell information about doctors' drug prescription records for commercial purposes.

The prevailing wisdom has been that the Constitution provides little, if any, direct protection for informational privacy. As a result, privacy gets legal protection in the United States primarily through statutes. Among the most common statutes are those protecting information about medical care and prescription drug use. NASA leaves this general system basically intact, not expanding any direct constitutional source for privacy but not restricting the government's ability to enact privacy laws. Sorrell, however, has the potential to call many of our privacy-protecting statutes into question. [DISCLOSURE: I have provided some advice to the Vermont attorney general's office in Sorrell.]

BACKGROUND

Both of the 2011 cases can trace their roots to Whalen v. Roe, 429 U. S. 589 (1977), which marks the last time the Supreme Court gave extended consideration to what it called the "interest in avoiding disclosure of personal matters." The plaintiffs in Whalen were patients challenging a New York statute that created a computerized database of all persons who had filled prescriptions for certain drugs. A difficulty for the patients was that the Constitution does not in so many words set forth an individual right to keep information away from other private parties or from the government. (It does, however, provide explicit protection against certain types of information-gathering by the government. Most important are the Fourth Amendment limits on government searches of people's "persons, houses, papers and effects," and the Fifth Amendment right against testifying as a witness against oneself in criminal cases.)

In 2011, those serious about reducing the deficit will look to tax expenditures

By Professor Katherine Pratt

This is the year in which the president and the Congress should focus on reducing inefficient and out-of-control spending through the tax code, to reduce federal budget deficits without gutting worthwhile discretionary spending programs.

President Barack Obama deserves credit for speaking frankly in his recent State of the Union address about the critical need to cut "spending" in all parts of the federal budget, not just in the non-defense discretionary spending that makes up a relatively small part of the federal budget. Obama also deserves credit for suggesting that we eliminate tax "loopholes" - also known as "tax expenditures" (targeted tax subsidies that benefit a narrow group of taxpayers, reduce tax revenue and drive up tax rates for other taxpayers). However, the president missed an opportunity to call for reform of many of the loopholes in the individual income tax, to make the tax system more efficient and fair, and to contain the rapid growth of tax expenditures, currently estimated to total over $1 trillion a year.

Tax expenditures frequently are the economic equivalent of a federal spending program. Generally, in an income tax system, legitimate business expenses (e.g., the cost of renting an office) are deductible, but personal living expenses (e.g. the cost of renting an apartment) are not deductible. Our tax code provides generally that personal expenses are not deductible, but allows individual taxpayers to take certain types of itemized deductions (e.g., the home mortgage interest deduction) if the taxpayer's total itemized deductions exceed the "standard deduction" ($11,600 for married couples and $5,800 for individuals in 2011). The itemized deductions allowed by the tax code thus generally are the functional equivalent of a loophole-free income tax code plus a federal spending program. For example, the home mortgage interest deduction is a federal housing subsidy that disproportionately benefits upper-income homeowners. Our tax code also provides tax subsidies in the form of "exclusions," meaning that the excluded item is not treated as income and is not taxed. An example is the income tax exclusion for employer-sponsored health insurance ("ESI"), which drives up the cost of healthcare and disproportionately benefits taxpayers whose employers provide "Cadillac" health insurance.

Will arbitration kill the consumer class action?

By Associate Professor David Horton

For "contract procedure" enthusiasts, few stories in 2011 will rival the U.S. Supreme Court's decision in AT&T v. Concepcion. The Court will decide whether the Federal Arbitration Act (FAA) preempts state courts from striking down class arbitration waivers under the unconscionability doctrine. It's no exaggeration to say that the fate of the consumer class action hangs in the balance.

The seeds of Concepcion go back to the late 1990s and early 2000s, when companies began to see mandatory arbitration clauses as a panacea for class action liability. During that period, most courts held that the FAA flatly precluded plaintiffs from aggregating claims. As a result, mandatory arbitration clauses not only funneled consumers outside of the court system, but forced them to pursue their lawsuits on an individual basis. But in 2003, a highly fractured plurality of the Court suggested in Green Tree v. Bazzle that the FAA didn't bar class arbitration. Thus, to continue to use arbitration as a bulwark against the class action, companies were forced to insert express class action waivers into their agreements.

In Discover Bank v. Superior Court, a landmark 2005 decision, the California Supreme Court held that these class arbitration waivers could be unconscionable when applied to numerous low-value claims. The state high court explained that, in those circumstances, class arbitration waivers amounted to "get out of jail free cards" for corporate liability. For instance, if a business defrauds a million consumers out of $10, no individual consumer will spend the time and money necessary to sue. That lawsuit will either be brought as a class action or not at all.

The future of employment discrimination class actions

By Professor Michael Waterstone

This spring, the Supreme Court will weigh in on Wal-Mart v. Dukes, a case which could have huge implications for both employment discrimination and class action law. Plaintiffs are a class of female Wal-Mart employees alleging sex discrimination. Specifically, they claim that they were paid less than men in comparable positions and received fewer promotions to management positions. The District Court certified a class of more than 1.5 million employees, but the Ninth Circuit reduced the number to 500,000 by excluding female employees who no longer worked at Wal-Mart from the class.

Even at 500,000, this would still be the largest-ever gender bias class action case. Enter the Supreme Court. The order granting certiorari indicates the Court will look at two questions. The first question is whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)--which by its terms is limited to injunctive or corresponding declaratory relief--and, if so, under, what circumstances? Plaintiff's damage claims are for back pay, declaratory relief, and punitive damages, but not compensatory damages. There is currently a Circuit split on the issue of to what extent monetary damage claims are allowable in a 23(b)(2) class action. The stakes here are important: If plaintiffs' damage claims disqualify them from a 23(b)(2) class action, they will need to serve notice to every individual plaintiff and show that common issues predominate over individual ones.

The second question goes more to the heart of whether a class this big can be maintained, asking "whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a)?" The Court will look at whether plaintiffs' evidence--including statistical proof of disparities between men and women, anecdotal evidence, and expert proof on social framework analysis showing susceptibility to gender bias in the management structure--establish a corporate-wide policy of discrimination, an issue that could be common to all women in the class?

With prosecutions of Guantanamo terrorists, 2011 a critical year

By Professor David Glazier

As my contribution to the ""11 on '11" discussion, I would like to identify one of the most significant challenges facing the U.S. government next year as being how to prosecute Guantánamo detainees for terrorism-related offenses. The issue is particularly key right now because the House of Representatives recently voted an outright ban on the transfer of detainees from Guantánamo to the United States for any reason. A logical consequence if this measure should become law would be that it would lead to more military commission trials.

Although the government has successfully prosecuted several hundred suspected terrorists in federal courts since 9/11 while securing only five extremely problematic "convictions" at Guantánamo, there is a persistent myth that military commissions are a superior forum for trying terrorists. This has been fueled recently by media spin on the federal court trial of Ahmed Ghailani in New York. Although Ghailani was convicted of a serious offense and will probably receive a life term when he is sentenced in January, both conservative critics and mainstream news outlets have chosen to describe the outcome as a "near acquittal" rather than the substantial victory it represents, particularly given the fact that the defendant was held in CIA black sites and subject to coercive interrogation, if not outright torture.

Despite popular perceptions to the contrary, it is the military commissions which pose much greater risk of failure in terrorism trials. Their serious legal flaws provide a number of grounds on which convictions can (and objectively should) be overturned while their ad hoc proceedings with rules made up on the fly have regularly proved embarrassing to the government and threaten to compromise larger national interests. I address these issues in much more detail in a draft article entitled "Still a Bad Idea: Military Commissions Under the Obama Adminstration."

The big health care story of 2011: Will we get to keep health care reform?

By Professor Brietta Clark

Certainly the biggest health care story of 2010 was the passage of health care reform--the Patient Protection and Affordable Care Act (the "Care Act"). This reform was considered an historic feat--numerous presidents and legislators have tried and failed to overhaul the private health care system to guarantee universal access. While the Care Act likely will not achieve universal access, it is certainly the closest we've come and the most dramatic step toward this goal since creation of the Medicare and Medicaid programs in the 1960s.

So what could top that in 2011? Nothing. Health care reform will still be the No. 1 health care story of the year, except this time the question is: Will we get to keep it?

The president's signature on the Care Act was hardly dry before people began attacking the new legislation. The two most high-profile attacks are coming from Republicans in Congress, emboldened by their recent gains in the House, and constitutional challenges to the law in federal courts. While Republican threats to repeal the Care Act makes for great political theater, there is a pretty strong consensus that such a repeal would never make it to President Obama's desk. The constitutional challenges pose a more credible threat to reform because they present a novel question about the federal government's power to require citizens to purchase private goods. However, the long history of federal government regulation in the area of health care spending and insurance means that challengers will have an uphill battle in the courts as well.

A number of lawsuits have been filed challenging the reform law by states and private individuals. These suits attack the three most important parts of the Care Act that expand health care access: (1) the expansion of Medicaid to cover all adults who fall below a certain income by 2014 (existing law only mandates coverage for children, pregnant women and people with disabilities); (2) creation and regulation of state health care exchanges (the mechanism to ensure that consumers can buy insurance plans that comply with benefits, affordability, and nondiscrimination protections); and (3) the individual mandate (which requires the purchase of insurance that satisfies minimum requirements).

The big redistricting story of 2011: 'We, the People'

By Associate Professor Justin Levitt

For my own contribution to the "11 on '11" kickoff of the Loyola Law School blog, I'd like to focus on redistricting. Every 10 years, the electoral districts of local, state and federal representatives are redrawn to keep pace with population movement. This cycle begins again in just a few months, as the Census Bureau releases the results of the national Census. Redistricting will then flare across the national consciousness for a few short moments, leaving scholars and pundits the remainder of the decade to interpret for a confused public the import of the process for the electoral landscape. For observers of the political process, redistricting is much like the medieval reappearance of a decennial comet--only with a lot more litigation.

At least three developments merit special attention in 2011. All revolve around the role that we, the people, have in redistricting.

One: The first is our latest attempt to assert control over the process. In most jurisdictions, legislators are in charge of drawing their own district lines or the lines they hope to inhabit. Because the composition of a district can have a direct and substantial impact on an incumbent's job security, legislators are naturally tempted to pick and choose voters based on personal or partisan reward or punishment. Districts have been drawn to include prominent donors or exclude promising challengers, notably including then-state Senator Barack Obama. When practiced by insiders with a stake in the game, the process can be the most vicious of political bloodsports.

Marriage equality's road to the Court

By Associate Professor Doug NeJaime

This is the third installment in the 11-part series, "11 on '11," in which Loyola Law School professors are weighing in on what they expect to be the biggest legal issues in their fields in 2011. (On Monday, Dec. 6, Professor NeJaime will live Tweet the Ninth Circuit Court of Appeals oral arguments in Perry v. Schwarzenegger beginning at 10 a.m. PT. He will provide follow-up analysis on Summary Judgments afterward.)

Everyone now seems to agree: The U.S. Supreme Court will eventually take up the issue of marriage for same-sex couples. But an open question remains: in what context?

Two potentially landmark federal cases are working their way through the courts. The first, Gill v. Office of Personnel Management, is a carefully constructed piece of movement advocacy. LGBT rights lawyers have long avoided the issue of marriage in the federal courts, preferring instead to work with sympathetic state courts (and, increasingly, legislatures) and keep the issue away from a generally conservative U.S. Supreme Court. But after a series of state-level victories, lawyers at Boston-based Gay & Lesbian Advocates & Defenders (GLAD) filed their Gill complaint, which challenges the unequal treatment of Massachusetts married couples (same-sex vs. different-sex) under the federal Defense of Marriage Act (DOMA). DOMA prohibits the federal government from recognizing same-sex "spouses," thereby creating two separate systems of federal treatment of couples who are married for Massachusetts state law purposes.

Meanwhile, in the wake of Proposition 8, which amended the California Constitution to prohibit marriage for same-sex couples, the newly formed American Foundation for Equality Rights (AFER) filed Perry v. Schwarzenegger, a federal constitutional challenge to the ban. While LGBT rights lawyers refused to challenge Proposition 8 in federal court and discouraged AFER from doing so--preferring instead to work at the state level--famed litigators Ted Olson and David Boies took the case.

To suppress or not to suppress? Fourth Amendment takes center stage

By Professor Laurie Levenson

All of the cases before the U.S. Supreme Court are important, but for the 2010-2011 term, some criminal procedure cases are more important than others. The Fourth Amendment is the meat and potatoes for most criminal practitioners. This term presents two important cases regarding the exclusionary rule for Fourth Amendment violations.

The case of Davis v. United States, No. 09-11328, while addressing changes in the rules for searches incident to an arrest in an automobile, really focuses on where the Court may be headed with the exclusionary rule. Ever since Herring v. United States, 129 S.Ct. 695 (2009), many have speculated about whether the Leon good-faith exception to the exclusionary rule would expand to swallow the rule itself. Slowly but surely, the courts have created more good faith exceptions to the rule. The latest expansion of the good faith exception may come in Davis, where the United States argues that searches conducted before the Court's new ruling in Arizona v. Gant, _ U.S. _, 129 S.Ct. 1710 (2009), should not be suppressed because law enforcement was relying on prior Supreme Court precedent. (Supreme Court opinions are available online.)

Yet, while this is undoubtedly an important issue, there is more to watch in this case. In footnote 33 of the amicus brief recently filed by Wayne County, Mich., law enforcement is once again pushing to reduce all exclusionary rule decisions to a question of whether law enforcement's conduct was "deliberate, reckless, or grossly negligent." Law enforcement has not been shy in suggesting that the Court push this agenda. As they put it, "there is no time like the present." Davis could end up being a blockbuster case, depending upon how narrowly or broadly the Court applies the exclusionary rule. The Court may continue to chip away at the exclusionary rule, or bust it wide open once and for all, and let individual judges in each case balance whether the law enforcement officers in question could and needed to be deterred.

But, that is not all. The Supreme Court has yet another case waiting in the wings, Tolentino v. New York, No. 09-11556, that will examine the "fruit of the poisonous tree" doctrine under the exclusionary rule. Jose Tolentino was unlawfully stopped for playing music too loudly. Police learned his name, ran a DMV check, and discovered that his license had been suspended. He was then arrested for driving without a license. The New York court refused to suppress the evidence because it held that the exclusionary rule does not apply to a person's identity. The majority rejected the dissent's argument that refusing to apply the exclusionary rule will "give law enforcement an incentive to illegally stop, detain, and search anyone for the sole purpose of discovering the person's identity and determining if it matches any government records."

There is a good chance this term that the Court will reshape the Fourth Amendment by expanding the good-faith exception and contracting the fruit-of-the-poisonous tree doctrine. At least for drivers confronted by law enforcement, the protections of the Fourth Amendment may soon be getting thinner and thinner.

Introducing Summary Judgments

Welcome to Summary Judgments, the new Loyola Law School, Los Angeles faculty blog. Intended to be read by lawyers, judges, scholars and students, this blog will offer commentary on legal and policy issues as well as highlight the academic pursuits of the Loyola community.

This forum will feature professors' analyses of legal matters ripped from the headlines. That will be complemented by periodic digests of faculty members' scholarly work and prolific media commentary. From time to time, we'll post summaries of the many academic events Loyola hosts on campus, from law review symposia to policy colloquia. Most importantly, this blog will serve as a clearinghouse for the wide variety of viewpoints here at Loyola Law School.

We will debut this blog with the "11 on '11" series. Eleven members of the Loyola faculty will offer commentary on what they expect to be the most significant legal developments in their respective fields in 2011. My colleague and blogger extraordinaire Rick Hasen will open the series by commenting on McComish v. Bennett, a case challenging the matching funds provision of Arizona's public financing law.

Thanks for joining us. We hope you return often!

-Professor Michael Waterstone, Associate Dean for Research and Academic Centers

The Big Campaign Finance Story of 2011: An Effective End to Public Financing

By Professor Rick Hasen

It is with great pleasure that I kick off the "11 on '11" series at Summary Judgments, the new Loyola Law School, Los Angeles faculty blog. The series asks us to identify what is likely to be the most significant legal development in our field in 2011. In the field of campaign finance, the big story is likely to be the continued demise in public financing of campaigns, a development caused by both court rulings and legislative inertia.

As early as tomorrow morning, I expect the United States Supreme Court to agree to hear McComish v. Bennett, a case challenging the matching funds provision of Arizona's public financing law. Under the law, a candidate for state office who agrees to take public financing in lieu of private funds to finance a campaign receives extra public financing when the candidate faces a wealthy opponent who spends large sums in the election or by large independent expenditures against the candidate accepting public financing. As I explained in a June post at the Election Law Blog, I expect the Court to not only take this case, but to reverse the Ninth Circuit and strike down the Arizona public financing system. (To be clear, that's not a result I favor: the Ninth Circuit's opinion in the case, and Judge Kleinfeld's concurrence, offer strong reasons to reach a contrary decision in this case and uphold the Arizona regime).

This development is significant because the Court is likely to take away one of the only tools available to drafters of public financing measures to make such financing attractive to candidates. Public financing has a number of benefits, including reducing the threat of corruption and the appearance of corruption, providing a jump start for new candidates who are not professional politicians, and freeing up candidates and officeholders to have more time to interact with voters. But rational politicians who are serious candidates will not opt into the public financing plan unless they think they will be able to run a competitive campaign under the public financing system. The whole point of the extra matching funds in the Arizona plan is to give candidates assurance they won't be vastly outspent in their election. While an adverse ruling by the Supreme Court in McComish would not mean that all public financing systems would be unconstitutional, it would eliminate one of the best ways to create effective public financing systems.

If the Court strikes down the Arizona plan, I expect reformers will push for various alternative plans (which have been proposed over the last few years) to provide public financing to candidates, along with a multiplier match (3 or 4:1) for small contributions. (Give a candidate $100? The candidate gets an additional $300 or $400 from the public financing system.) The idea here would be to provide another way that publicly financed candidates to run competitive campaigns without running afoul of the First Amendment (as likely understood by the Court in McComish). Such plans,however, face two major problems. First, it is not clear if they will actually attract such candidates to participate. Will a rational candidate expect that there will be enough money in the system from these multiplier matches to participate, when facing not only wealthy candidates, but independent spending campaigns which can now be funded by unlimited corporate or union funds through super-PACS? (All of this new funding, of course, is thanks to the big campaign finance story of 2010, the Supreme Court's decision in Citizens United.)

Second, it will be a hard sell to enact new public finance laws during these difficult economic times. Arizona passed its current measure via initiative. It would require considerable work and resources to get a new measure before voters and passed.

The lack of public financing will also be a major story in the upcoming 2012 presidential campaign, which will get going in 2011. As I describe in detail in Richard L. Hasen, The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in THE FUNDING OF POLITICAL PARTIES (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge, forthcoming March 2011) (draft available), no serious candidate in the 2012 presidential campaign will be able to afford to take public financing: the U.S. system for publicly financing presidential elections simply has not kept up with the ability of non-participating candidates to raise funds privately. Though President Obama pledged to fix the public financing system, he's never come forward with a plan to do so, and even if he did, such a plan would have virtually no chance getting out of the Republican House or past a Senate filibuster.

Public financing will still exist in 2011 and beyond, but expect fewer participants and less of an impact of such systems going forward.