Legal Realism: Unfinished Business

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Response Piece | 107 KY. L. J. ONLINE | Volume 107

Ramsi A. Woodcock*

I. Legal Reasoning as a Renaissance Habit of Mind

The great evolutionary biologist Stephen Jay Gould devoted his last book to the relationship between science and the humanities.[1] Gould argued that the Renaissance was not the forward-looking launcher of the scientific revolution that many, inspired by the careful observations of nature in the work of Leonardo Da Vinci, believe it to be, but a backward-looking enterprise.[2] The Renaissance sought to restore the learning of the ancients rather than to advance scientific knowledge through observation of the natural world.[3] Gould gives the example of the “Historia animalium” of Ulisse Aldrovandi and Konrad Gesner, the greatest natural historians of the period.[4] That book includes chapters on the elk and the fox, but also on the unicorn and the satyr, not, as Gould is quick to point out, because Aldrovandi and Gesner necessarily thought that unicorns and satyrs exist, but because the ancients had written about those creatures.[5] The Renaissance was oriented toward ancient intellectual authority, not toward the observable world.[6] As Gould puts it, “for the Renaissance, the recovery of ancient wisdom, not the discovery of novel data, became the primary task of scholarship.”[7] Gould goes on to detail how in the seventeenth century science moved on to focus on reality.[8] The law, however, had to wait another three hundred years to make this move, and in important respects is still waiting.

The Renaissance character of legal studies is one of the most jarring aspects of legal education for American students, who, unlike law students in most other parts of the world, commence their study of law after four years of undergraduate education in other fields of intellectual endeavor.[9] The practice of law to this day is often not oriented toward the observation of reality but toward the observation of legal texts, their categorization and systematization in relation to each other, rather than in relation to the world.[10] The undergraduate major in economics of course learns mathematical models that may be horribly divorced from reality and utterly incapable of answering the pressing economic questions of the day. But the key difference between this experience and that of the law student is that the economic models learned by the undergraduate economics student are supposed to reflect reality, however badly they may in fact do that.[11] Even the undergraduate major in comparative literature, who primarily studies chains of authorial influences — can hints of Heraclitus be found in Rabelais? — engages in a course of study that is oriented toward observed fact, even if texts themselves are the subjects of observation. Either there is Heraclitus in Rabelais or there is not.

By contrast, new law students quickly find that what matters in the law is “legal argument,” the drawing of analogies to past cases, rather than argument based on observed fact, on the relationship between particular case outcomes and the world.[12] Getting the case right does not mean identifying the effects of a set of possible rulings on the nation and deciding whether those effects are desirable according to some metric, whether that metric be justice, the carrying out of the expectations of the legislature, or something else.[13] Getting the case right means finding the outcome that best fits past cases, preferably those decided by courts or judges with the greatest prestige.[14] The law in the first instance appears to the new law student not as a system to be back-tested against the world but to be back-tested against itself.[15] In order to solve cases, the law student dives into the law library, which collects reports of past court decisions, not into the university’s main library, which collects works devoted to describing the real world. Just so, the Renaissance naturalist dove into ancient manuscripts to describe the natural world, not into the nearest lake.No wonder American law students experience their first year of legal studies as exceptionally difficult and find their undergraduate performance little guide to their performance on first-year law exams. These students have spent their entire intellectual lives in the Enlightenment, excelling by showing their teachers that they have a better grasp on reality than their classmates.[16] But in law school that skill matters not at all. For some, the result is a crisis of motivation, because they have grown up associating the pursuit of reality with self-worth. For others, it is a moral crisis, as they find legal reasoning leading them to support case outcomes that they believe will be bad for the world. They are taught, however, that accepting that law and justice are two different things is key to joining the profession.[17] For still other students, the crisis is one of skills. They may have been very good at arguing from reality in their prior intellectual lives; all at once, they must learn the very different skill of arguing from authority.

The Renaissance character of legal reasoning gives new law students, and the lawyers they go on to become, unique insight into the intellectual battles of the past, albeit insight they could do without. Gould wrote of the Renaissance that “[w]e often get befuddled when we try to comprehend the central belief of the system that the Scientific Revolution hoped to replace, because [argument from authority] strikes us as so strange and archaic[.]”[18] But to the seasoned lawyer, Aldrovandi and Gesner’s approach to natural history is perfectly familiar: there is no better way to win a case than to show that a very important court said something supportive, and the greater the number of courts, and the further back in time that support can be shown to stretch, the stronger the authority still. It does not matter if the result is bad for America or the world, or something that actual legislators, not the abstract “intent of the legislature” to which courts refer in doing legal reasoning, could not possibly have wanted.[19] The fact that other cases support the outcome is enough. The sixteenth century is alive and well in the law. 

II. Legal Realism as Policymaking

For at least a hundred years now, the legal realist movement has contested the Renaissance approach to the law by insisting that legal argumentation always be reality-based.[20] The question in deciding any case, insist the legal realists, is always what those who framed the law — that is, legislators — would actually want to have happen in the particular case, or, in matters of common law, what the best result would be after taking consequences into account.[21] That is, realists want courts to do what everyone else in government already does: make policy. The term “policy” evokes armies of PhDs in subjects like sociology, environmental science, government, and, above all, economics, working for think tanks, administrative agencies, or the science departments of universities, gathering data and making recommendations about what the President or Congress should do. What the term “policy” does not invoke is the court or the law school. Policy is modern governance, in contrast to the Renaissance governance that is still the staple of the law.[22]

The fact that policy is generally associated with institutions other than the courts and law schools reflects how society has dealt with the failure of legal practice to adapt to science: by pushing the legal world aside. It is no coincidence that the rise of the legal realist movement a hundred years ago coincided with the dawn of the administrative state.[23] The legal realist movement and the movement to outflank the law with policy institutions was one and the same.[24] Legal realists wanted judges to get real, and seeing that they would not, sought to take governance outside of the realm of the courts and place it in the hands of administrative agencies staffed with people educated into reality-based intellectual disciplines, people with PhDs, not JDs.[25] The legal realists have created a policy world outside of the law that has vastly more influence today over how the country is run than do courts and their method of legal reasoning. Today federal legislation is pervasive and state statutes have greatly circumscribed the ambit of the common law, from the Uniform Commercial Code, which extracted vast swaths of commercial law from the common law power of the courts, to the more recent tort reform push to reduce the law of punitive damages to statute.[26] Indeed, the federal courts today defer to the vast majority of administrative agency decisions explicitly on the ground that the judiciary lacks the expertise to review them.[27] But this was not always so.

Nineteenth century America was ruled by courts; legislation was uncommon, narrow, and subject to searching judicial review.[28] Nowhere is the change wrought by legal realism on judicial power starker than in the mostly-forgotten history of judicial review of price regulation by administrative agencies.[29] The Supreme Court grudgingly conceded power to Congress to create price-regulating administrative agencies in Munn v. Illinois in 1877, but for more than 50 years starting in 1890 the Court insisted on supervising the prices those regulators set.[30] In case after case, the Court sought to use legal reasoning to determine whether the price of electricity, tap water, or whatever other product was before the court, met a standard of fairness that the Court found in the Due Process Clause of the U.S. Constitution.[31] After decades of withering criticism from the legal realists, however, the Court finally quit the field in 1944, conceding that price setting by precedent should give way to reality-based price setting carried out by experts — economists — trained in understanding markets.[32] Every similar retreat of the courts from constitutional review of regulatory activity over the past century has been a victory for legal realism, for the policymaker over the lawyer.[33]

But unless the administrative state succeeds at doing away with the judiciary entirely, the triumph of legal realism will be complete only if it transforms the way judges do law. In this, legal realism has had mixed success. The realists did take legal scholarship more or less by storm, convincing elite law professors that they should never push for a change in the law, or a particular resolution of a pending case, without deploying policy arguments in support.[34] Renaissance-style scholarly pursuits, such as the writing of immense treatises collating all of the cases relating to a particular branch of the law, have ceased to occupy law professors at the best schools.[35] “Law and . . . ” scholarly subfields have proliferated, as law scholars have sought to import various reality-oriented intellectual disciplines, from literature to sociology, into the law.[36]

Perhaps the most important of the “law and . . .” subfields has been law and economics, which appeared in two distinct phases.[37] The first was a project of the original group of legal realists, most notably Robert Hale, that sought to push the courts aside rather than reform them.[38] The great triumph of this first law and economics movement was convincing the Supreme Court to get out of the rate regulation business by showing how badly adapted legal reasoning was to deciding what a fair price might be.[39] The second movement, which started in the 1950s, was oriented to the internal reform task of replacing legal reasoning with reality-based economic reasoning.[40] This second iteration should probably be credited with doing more to compel law scholars to focus on results than any other single effort to open the law up to the reality-based intellectual world.[41] But its success has been limited by the shortcomings of economics as a social science. Despite its orientation toward reality, economics ignores large categories of human behavior that ought to be relevant to a scientific approach to law, because economics assumes that all economic actors are rational and have static preferences.[42] Nonetheless, every time a law professor, influenced by economics, argues that the parties to a case will contract around controlling precedent, or that a rule will distort economic incentives, the professor accepts that consequences matter, even if the professor makes no effort to undertake a careful study of those consequences.[43] Law and economics has in this way been a victory for realism.

It would be a big mistake to infer from the realist success in the realm of legal scholarship a similar triumph in legal practice. The primary currency of argumentation in the world of legal practice remains the analogy from past cases, with more legal realist approaches appearing only occasionally, and then only in the most elite courts in the most important cases.[44] Precedent continues to matter, not because it helps courts determine what the best outcome for America might be, or because the consequences of a lack of consistency in case handling would be bad for the nation — both acceptable realist approaches to precedent — but because precedent came before, just as the unicorn mattered for the Renaissance naturalist, because it came before.[45] 

III. Mossoff on Trademark

A. His Argument

It is against this backdrop of the continuing contestation of realism in the law that Mossoff’s argument that trademark is a property right must be evaluated.[46] Mossoff argues that courts and commentators have tended to deny trademark the status of property because they have failed to analogize trademarks to easements, which permit owners of real property limited access to neighbors’ land.[47] According to Mossoff, trademarks, like easements, are linked to ownership of something else.[48] For trademarks, it is ownership of the business associated with the mark in the minds of consumers.[49] For easements, it is ownership of the real property to which the easement provides access.[50] According to Mossoff, because courts rely on the contingency of easements on a property right to accord easements themselves the status of property, courts should rely on the contingency of trademarks on property in a business to accord trademarks the status of property as well.[51] 

B. The Missing Consequences

Mossoff’s paper will serve to remind realists of just how bad legal scholarship was before it embraced reality. For the paper argues a legal question over nearly forty long pages with nary a word about legal consequences, let alone what those legal consequences might mean for Americans out in the real world.[52] Treating trademarks as property based on their connection to ownership of the underlying business could suggest to courts that trademarks protect the value of consumer loyalty to that underlying business rather than serving, as the courts believe them to today, to prevent consumer confusion of brands.[53] The concept of genericide, which eliminates trademark protection when a mark like “escalator” comes to be associated by consumers with an entire product category rather than a particular brand, could disappear, for example, because genericide undoubtedly reduces the value of a firm’s mark.[54] The likely result would be greater market power for firms with successful brands, for good or ill.[55]

Mossoff wants to win this debate without any discussion of the policy consequences, of whether ironclad protection of reputation is in fact good or bad for markets. But what Americans care about is whether protecting brand loyalty is good or bad for consumers. Protecting brand loyalty might be good for consumers because it allows firms to reap rewards from investing in the production of better products. Or protecting brand loyalty might be bad for consumers because it magnifies the power of seductive advertising or the familiarity generated by having been first to market to create irrational brand attachments, leading to higher prices and harm to more-innovative but less-well-known competitors.[56] Legal realism demands that the debate over trademarks be carried out in these terms, in terms of effects. Mossoff would resolve the entire question based on an analogy to the law governing whether a farmer can use a neighbor’s field to get to the road. Because a court once said the farmer could get to the road, Mossoff would say that a trademark can never be set aside so long as it remains valuable to its owner.[57] Just so, the Renaissance scientist looked to Hesiod rather than the hills for information about the natural world. 

C. Indeterminacy

The failure of legal reasoning to take account of consequences, of which Mossoff’s paper is an example, is damning enough. But the realist critique of legal reasoning always goes further, to show that legal reasoning not only fails to take the real world into account, but cannot even provide courts with clear guidance about how to resolve cases.[58] Legal reasoning, argue the realists, is more like rhetoric than mathematics.[59] For the realist, legal reasoning lacks the determinacy of mathematics because, looked at from the right angle, anything can be analogized to anything else. Trademarks are like easements in that they are both contingent on ownership of something else, but they are also like turtles in that they both start with the letter “T.” The only way to really win an argument through legal reasoning is therefore to assume your conclusion.[60] Mossoff cannot argue that trademark is property because trademark rights happen to have a structure (existence contingent on ownership of a piece of property) that resembles the structure of some other rights that the law treats as genuine property rights. If the law does not actually say that trademark is property — and it cannot because Mossoff’s purpose is to fill that silence with his legal reasoning — then the fact that trademarks merely resemble rights that have been designated as property rights tells nothing about whether trademark rights should be treated as genuine property rights.[61] The resemblance just poses the question whether there should be a rule saying that everything that resembles a property right is a property right. If the argument is that yes, there should be such a rule, then an argument must be made for why that rule should be adopted, returning the argument more or less to where it started, which was to find a way to argue from existing law to the need for recognition of a new rule of law that resolves the question whether trademark should be treated as property.

To his credit, Mossoff’s target is an equally specious example of legal reasoning: the argument that trademark cannot be property because it does not resemble other property rights.[62] That textbook take on the relationship between trademark and property holds that trademark rights are not property because their limitation to use in conjunction with the underlying business makes them unlike basic property rights, which, on this telling, do not have any limits on use.[63] But just as resemblance cannot be used to make a property right, non-resemblance cannot be used to deny a property right. Neither resolves the question without assuming its conclusion. The fire of legal reasoning cannot be fought with the fire of more legal reasoning. The true realist approach would be to ask whether making trademarks count as property would be good for America and to proceed to treat trademarks as property if the answer is yes.

Of course, the realists’ beloved policy analysis is just as flexible, and determinate, as legal reasoning.[64] Considering the consequences of laws never actually definitively resolves the question what the correct law should be.[65] That requires the addition of a rule of decision, a value system such as human rights, or maximization of social welfare in the economic sense.[66] The position of the realists, however, is that legal reasoning is no more exact, no more determinate, than policy analysis.[67] As between two approaches that are equally open to interpretation, the realists would choose the one that is informed by reality. After a bout of legal reasoning, the lawyer ends up without an airtight argument for any particular result, plus no sense of what any particular result would mean for the country.[68] At least with legal realism, the lawyer obtains a sense of the consequences, and that in turn gives the lawyer a feeling for which outcome might be best. 

D. Confusion about Realism

Mossoff mistakenly associates the textbook case against trademark as property — the specious argument that because trademark does not resemble other property rights it cannot itself be a property right — with legal realism.[69] He sees the realists in the textbook case because he mistakenly believes that the realists define property as a plenary right of control — absolute dominion — over the owned thing, a position Mossoff associates with the phrase “right to exclude.”[70] If a right must have that plenary character in order to be a property right, then it follows immediately that the limited right to use marks that is conferred by trademark law is not a property right.[71]

But the view of property Mossoff attributes to the realists could not be more different from the realists’ actual view, because the view he attributes to the realists is the very same view that the realists attacked, and demolished, a hundred years ago.[72] Nineteenth century courts used the view of property as conferring absolute dominion over a thing to resist realist attempts to shift governance to administrative agencies.[73] The courts argued that all administrative action deprives owners of their property, in violation of the due process protection for property contained in the U.S. Constitution.[74] The view of property as absolute dominion allowed the courts to argue that when a rate regulator fixed a price for a good, for example, the owner’s property rights were violated because those rights extended to all uses of the good, including the choice of the price to charge for the good’s sale.[75] The realists fought back with the now-familiar argument that property rights are whatever the courts want them to be.[76] The courts could just as easily define property not to include a right to set the price as to define it to include a right to set the price.[77] The concept of property did not require that the courts view rate regulation as a deprivation of property. In the view of the realists, the courts were free to choose the definition of property with the best consequences for America, and in the realists’ view that was the definition that would facilitate administrative action.

The realists’ attacks on the view of property as absolute dominion is also the origin of the famous realist view of property as a bundle of rights.[78] The point of the bundle metaphor was that a regulator could break property down into pieces, take out the pieces that were preventing the regulator from operating, and then bundle the remaining pieces back together, without the bundle ceasing to add up to property.[79] A true realist would never argue that the contingency of trademark rights on ownership of the underlying business means that trademarks cannot be property because, for the realist, the contingency of the trademark right just means that the bundle of rights that is a trademark lacks a few of the sticks that make up absolute dominion over the owned thing. But, for the realist, that alone is no more reason to deny trademark the property moniker than it is to grant trademark the property moniker. 

IV. Conclusion

Mossoff can be forgiven for confusing the textbook case against trademark as property for realism because today many scholars take for granted that realism dominates scholarship.[80] It would seem to follow that the textbook view must be a realist view. The fact that the textbook view is instead of the Renaissance variety is a measure of the extent to which the legal realist project remains unfinished in the law, and scholars on both sides of the trademark debate who should know better continue to engage in legal reasoning. Despite the immense practical importance of intellectual property law, and the rich body of reality-based economic and social scientific scholarship devoted to intellectual property issues, the legal study of intellectual property law today remains perhaps more mired in the Renaissance, in Felix Cohen’s “heaven of legal concepts,” than any other area of legal scholarship.[81] The debate over whether trademark is property provides but a glimpse of the problem. But that is a story for another day. 

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[1] See Stephen Jay Gould, The Hedgehog, the Fox, and the Magister’s Pox: Mending the Gap between Science and the Humanities 1–8 (2003).

[2] Id. at 36.

[3] Id.

[4] Id. at 37.

[5] See id. at 37–38.

[6] See id.

[7] Id. at 36.

[8] See id. at 39–47.

[9] See Daniel R. Coquillette, Lawyers and Fundamental Moral Responsibility 1 (1995).

[10] The percentage of the text of court opinions that is quoted from other court opinions is a rough measure of the extent of this orientation. To choose an example at random, eleven percent of a recent Supreme Court opinion quotes directly from other legal opinions. See District of Columbia v. Wesby, 138 S. Ct. 577 (2018).

[11] See Eugene Silberberg, The Structure of Economics: A Mathematical Analysis 1–2 (2d ed. 1990).

[12] See Robert J. Fogelin & Walter Sinnott-Armstrong, Understanding Arguments: An Introduction to Informal Logic 423–25 (6th ed. 2001).

[13] See Barbara Fried, The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement 14 (1998).

[14] Fogelin & Sinnott-Armstrong, supra note 12, at 423–25.

[15] See Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 821 (1935) (describing legal reasoning as dealing in “theorems in an independent system” rather than statements about the world); Guido Calabresi, The Future of Law and Economics: Essays in Reform and Recollection 8 (2016).

[16] See Coquillette, supra note 9, at 1 (acknowledging the conflict between legal education and liberal arts backgrounds).

[17] See Fogelin & Sinnott-Armstrong, supra note 12, at 459.

[18] Gould, supra note 1, at 36.

[19] Cf. Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017) (“[W]hile it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced. . . . Indeed, it is quite mistaken to assume . . . that ‘whatever’ might appear to further the statute’s primary objective must be the law.”) (internal brackets and quote marks omitted).

[20] See Peter Cane & Joanne Conaghan, Legal Realism, in The New Oxford Companion to Law (2008).

[21] See Joseph William Singer, Legal Realism Now, 76 Calif. L. Rev. 465, 467–68, 474 (1988); Fried, supra note 13, at 14. A reality-based approach to statutory interpretation seeks to answer the question what the legislature would want the court to do in the case at hand. Answering that question requires careful study of the consequences of any particular interpretation, and study of the legislature to determine how the legislature would feel – a word used here advisedly – about the outcome. What legislators happened to say during debates over passage of the law is only one datum among many that are relevant to a realistic statutory interpretation.Statutory interpretation today, however, does something quite different: it simply treats records of legislative debates as authoritative texts. See Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 848–50 (1992). The detachment of this current approach from reality is evident in the fact that no court appears ever to have mentioned the offices of legislative counsel of the House and Senate of the U.S. Congress, which employ dozens of lawyers who draft the actual texts of the bills proposed by federal legislators. See Office of the Legislative Counsel, Welcome to the Office of the Legislative Counsel of the U.S. House of Representatives, https://legcounsel.house.gov/ (last visited Sept. 9, 2018). It seems reasonable to suppose that those who actually wrote the language of the laws on the books might be able to explain the intent behind key words. The fact that no court has ever seen fit to ask these bill drafters what their words were meant to convey reflects the Renaissance orientation of statutory interpretation toward texts rather than reality.

[22] Harold Berman observes that the scientific revolution brought a focus on cases and evidentiary standards to the law that reflected an interest in the empirical. See Harold Joseph Berman, Law and Revolution, II the Impact of the Protestant Reformations on the Western Legal Tradition 301 (2006). A focus on cases creates only the semblance of empiricism, however, so long as that focus is mediated by analogical reasoning from precedent.

[23] See Fried, supra note 13, at 14.

[24] See id.; Morton J. Horwitz, The Transformation of American Law, 1870-1960, at 169 (1992); Duncan Kennedy, Two Globalizations of Law & Legal Thought: 1850-1968, 36 Suffolk U. L. Rev. 631, 636 (2003).

[25] See Fried, supra note 13, at 14. A hundred years ago, the realists would in fact have been replacing LLBs, rather than JDs. The bachelor of law was the main degree awarded by law schools at the time. See J. Gordon Hylton, Why the Law Degree Is Called a J.D. and Not an LL.B., Marquette University Law School Faculty Blog, Jan. 11, 2012, https://law.marquette.edu/facultyblog/2012/01/11/why-the-law-degree-is-called-a-j-d-and-not-an-ll-b/.

[26] See Shael Herman, The Fate and the Future of Codification in America, 40 Am. J. Legal Hist. 407, 427–32 (1996); Douglas Laycock, Modern American Remedies: Cases and Materials 159–60 (4th ed. 2010).

[27] See Christopher J. Walker, Attacking Auer and Chevron Deference: A Literature Review, 16 Geo. J.L. & Pub. Pol’y 103, 105–6, 110–11 (2018).

[28] See Horwitz, supra note 24, at 220–22; Theda Skocpol & Kenneth Finegold, State Capacity and Economic Intervention in the Early New Deal, 97 Pol. Sci. Q. 255, 261 (1982).

[29] See generally Fried, supra note 13, at 160–93 (recounting this history).

[30] See Chicago, M. & St. PR Co. v. Minnesota, 134 U.S. 418, 458 (1890); Munn v. Illinois, 94 U.S. 113, 124–26 (1876); Fried, supra note 13, at 165–69, 176, 186–89; Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. 1189, 1208-09 (1986) (discussing Munn).

[31] See U.S. Const. amend. 5; Fried, supra note 13, at 175–89.

[32] See id.; Power Comm’n v. Hope Gas Co., 320 U.S. 591, 601–02 (1944).

[33] A high-water mark was reached in the 1970s, on the eve of deregulation, and since then the scope of the administrative state has contracted to a modest degree. See Richard A. Posner, The Problematics of Moral and Legal Theory 232–33 (1999);  Horwitz, supra note 24, at 230–68 (describing the reaction against regulation that started at the end of the New Deal).

[34] See Singer, supra note 21, at 503–04.

[35] See A.W.B. Simpson, The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature, 48 U. Chi. L. Rev. 632, 677–79 (1981).

[36] See Singer, supra note 21, at 504; Charles W. Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship, 41 Duke L.J. 191, 201–06 (1991); Calabresi, supra note 15, at 9.

[37] See Calabresi, supra note 15, at 15–16.

[38] See Fried, supra note 13, at 14.

[39] See id. at 186–93.

[40] See Calabresi, supra note 15, at 11–16.

[41] See id. at 15–16.

[42] See Elizabeth Mensch & Alan Freeman, Efficiency and Image: Advertising as an Antitrust Issue, 1990 Duke L.J. 321, 352–53 (discussing the limits of the assumption of static preferences in the advertising context).

[43] See Singer, supra note 21, at 503–04.

[44] For a rare example of a realist court opinion, see Roe v. Wade, 410 U.S. 113, 141–62 (1972). For an example of a contemporary opinion in the legal reasoning mold, see supra note 10.

[45] Much has been made of the spread of factor tests that require judges to balance “conflicting considerations” after 1945. See Kennedy, supra note 24, at 675–76; Duncan Kennedy, A Critique of Adjudication: Fin de Siècle 147–52 (1997). Judges certainly must consider consequences in order to apply these tests properly, but the persistence of the practice of analogizing from precedents usually prevents judges from properly applying the tests. Instead of considering consequences in weighing factors, judges analogize to past applications of the factors. For example, in one recent case, the Supreme Court applied the factor test for probable cause by mimicking the outcomes of past cases having similar facts, rather than by undertaking an independent evaluation of each factor, even though the Court acknowledged that probable cause is “a fluid concept that is not readily, or even usefully, reduced to a neat set of legal rules.” See District of Columbia v. Wesby, 138 S. Ct. 577, 586–88 (2018) (internal citations omitted). All else equal, a truly realist approach would give zero weight to the fact that similar cases were decided in a particular way. The popularity of factor tests does not represent the triumph of realism in adjudication.

[46] See Adam Mossoff, Trademark as a Property Right, 107 Ky. L.J. 1, 3–5 (2018).

[47] See id. at 4–5. For the definition of easements, see Jesse Dukeminier et al., Property 767 (7th ed. 2010).

[48] See Mossoff, supra note 46, at 4.

[49] In fact, Mossoff claims that the link is to the reputation of the business, which he calls goodwill. See id. at 11–18. Trademark has traditionally been tied not to goodwill in particular, however, but to the business, or more specifically to the assets that generate the product that is associated with the mark in the minds of consumers. See Robert P. Merges et al., Intellectual Property in the New Technological Age 909–10, 963–64 (6th ed. 2012) (discussing inter alia unsupervised licensing). This response essay will proceed as if Mossoff had made the more accurate claim of a link to the business, rather than to goodwill.

[50] Actually the tie exists only for “appurtenant” easements, whereas easements “in gross” are not tied to ownership of other land. See Dukeminier et al., supra note 47, at 767.

[51] Mossoff, supra note 46, at 4.

[52] See id. at 10–11.

[53] See Merges et al., supra note 49, at 765.

[54] See id. at 795–98.

[55] Frederic M. Scherer, First Mover Advantages and Optimal Patent Protection, 40 J. Tech. Transfer 559, 570–76 (2015) (discussing the consequences of brand loyalty in the first-mover advantage context).

[56] See Merges et al., supra note 49, at 766–68.

[57] See Mossoff, supra note 46, at 24.

[58] See Fogelin & Sinnott-Armstrong, supra note 12, at 427; Fried, supra note 13, at 14; Singer, supra note 21, at 468–69.

[59] In emphasizing the indeterminacy of the law, the critical legal studies movement carried the banner of this second aspect of legal realism in the last half of the 20th century, but the movement seemed to find little value in the orientation toward consequences and reality demanded by the first aspect of legal realism. See Kennedy, supra note 45, at 339–44. Critical legal scholars tended to assume that the indeterminacy of policy analysis made realism’s focus on consequences no more valuable than legal reasoning’s focus on analogy and precedent, no less a mystification, despite realism’s orientation toward reality. See id. at 147–52.

[60] See Cohen, supra note 15, at 814, 820.

[61] See Mossoff, supra note 46, at 9–11.

[62] See id. at 7, 20–21.

[63] See Merges et al., supra note 49, at 765.

[64] See id. at 147–52.

[65] See id.

[66] See Singer, supra note 21, at 474.

[67] See id. at 473.

[68] See Cohen, supra note 15, at 821.

[69] See Mossoff, supra note 46, at 7, 20–21.

[70] See id. at 20–21.

[71] See id.

[72] See Singer, supra note 21, at 490–94; Cohen, supra note 15, at 820. What seems to have confused Mossoff in the “right to exclude” rhetoric of the realists is the realists’ position that all rights, of property or otherwise, interfere with the rights of others. See Fried, supra note 13, at 53–56. Nineteenth century courts tried to maintain that property rights are a purely private affair, distinct from government exercise of coercive power. See id. For these courts, property involved a relationship between a person and the owned thing, and nothing more. See id. at 50–51. The realists countered that property rights involve relations between people, because it is inherent in the notion of a right over something that someone else’s right over that thing must be limited in some way. See id. at 53–56. Owning land implies a right to keep others off the land, at least at some times for some reasons. See id. It follows that state guarantees of property rights amount to the use of coercive government power against some people (the non-owners) in favor of the owners. See id. Property is therefore just as much a matter of government regulation as are the administrative agencies favored by the realists, and the courts therefore cannot cast their resistance to the regulatory state as a struggle between private property and government. See id. Private property is government too.Because their antagonists considered property to be absolute dominion, realists argued that property amounts to a right to exclude everyone without limitation. But that does not mean that realists think that the right to exclude granted by property must always be total. Realists are just as happy viewing limited rights, such as trademark rights, as rights to exclude. Their position is that all rights are rights to exclude to a greater or lesser extent.

[73] See Fried, supra note 13, at 176.

[74] See id.

[75] See id.

[76] See Cohen, supra note 15, at 820.

[77] See id.

[78] See Fried, supra note 13, at 51–52.

[79] See id. at 53.

[80] See Singer, supra note 21, at 467.

[81] For an excellent example of the economic analysis of intellectual property, see Vincenzo Denicolò, Do Patents Over-Compensate Innovators?, 22 Econ. Pol’y 680, 681–99 (2007); Scherer, supra note 55, at 560–76. For a discussion of realist approaches in a leading casebook, see Merges et al., supra note 49, at 10–16. For the “heaven of legal concepts,” see Cohen, supra note 15, at 809.

Metaphors on Trademark: A Response to Adam Mossoff, “Trademark as a Property Right”

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Response Piece | 107 KY. L. J. ONLINE | Volume 107

Brian L. Frye[1]

“Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.”[2] – Benjamin N. Cardozo

I. Introduction

There are two kinds of “intellectual property” scholars: those who use scare quotes and those who don’t.[3] Some scholars believe that intellectual property is just another kind of property, which the law should treat the same as any other kind of property.[4] But others believe that “intellectual property” has little or nothing in common with physical property and see the term “property” as little more than a misleading metaphor.[5] The disagreement between these two schools of thought is probably strongest when it comes to trademarks, which lack many of the “property–like” features of patents and copyrights, most notably alienability.

Adam Mossoff is decidedly in the property camp.[6] In his provocative but rather quixotic essay, “Trademark as a Property Right,” he claims that trademark simply “is” a property right. He observes that trademark can be conceptualized as a form of property right and notes that when 19th century courts initially created trademark doctrine, they often relied on analogies to physical property.[7] Mossoff shows that many features of historical and contemporary trademark doctrine can be analogized to use–rights in physical property, especially easements appurtenant and riparian rights.[8] Accordingly, he argues that trademarks should be defined as a form of use–rights, and receive similar treatment.[9]

I agree with Mossoff’s descriptive claim that trademarks can be and have been analogized to certain forms of physical property rights. His doctrinal and historical arguments are compelling. But the fact that courts have analogized trademarks to use–rights in the past does not obligate them to continue using the analogy.[10] And the fact that trademarks can be analogized to use–rights does not imply that courts must rely on that analogy.  It depends on your theory of trademarks.

People can and do reasonably disagree about whether and why trademarks are justified. Consequentialist theories hold that trademarks are a means to an end, and deontological theories hold that trademarks are an end in themselves.[11]Mossoff’s normative claims are decidedly deontological— specifically Lockean. He argues that business owners are entitled to own trademarks associated with the commercial goodwill they labored to create.[12] But consequentialist theories don’t ask whether people are entitled to own trademarks. They ask whether good things happen when people are allowed to assert trademark rights.

Accordingly, whether you find Mossoff’s normative claims appealing will depend on your own normative premises. He is unlikely to convince consequentialists, unless he convinces them to change their premises.

Mossoff’s essay also makes an epistemological claim, arguing that we should analogize trademarks to use–rights because it will help us better understand how trademarks can and should work.[13] Is he right? Maybe. At the very least, his analogy has some purchase on trademark history and doctrine. Surely, both deontological and consequentialist theories can benefit from a more robust understanding of the historical development of trademark law. But it is unclear how “tradition” could provide any consequentialist justification for trademark doctrines that produce undesirable results. 

II. Mossoff’s “Property Theory” of Trademarks

As he must, Mossoff recognizes that the prevailing theory of trademarks is utilitarian.[14] The overwhelming majority of courts and scholars assume that a trademark is “a regulatory entitlement whose function is to increase social welfare by reducing consumer search costs.”[15] In theory, modern trademark law “amounts to little more than industrial policy.”[16] However, the paradigmatic problem with trademark doctrine is its failure to regulate competition efficiently.[17]

Mossoff objects to the utilitarian theory of trademarks. He argues that trademarks can and should be “defined as a property right.”[18] Or rather, he argues that courts and scholars should adopt a Lockean theory of trademarks and conceptualize trademarks as a kind of “property” right analogous to physical property rights.

Mossoff begins by explicitly rejecting utilitarianism and proclaiming his fealty to the “Lockean property theory.”[19] He then observes that the historiography of trademark law is dominated by the utilitarian perspective.[20] While contemporary trademark scholars generally recognize that 19th century courts often adopted a “goodwill–as–property” theory of trademark, they describe a gradual transition to an “unfair competition” theory of trademark.[21] Mossoff disagrees, arguing that trademarks can and should be described in Lockean terms.[22]

While Mossoff disclaims any intention to provide an “intellectual history” of trademark law, he traces the origin of trademark law to the emergence of the concept of commercial goodwill in the early 19th century.[23] He argues that 19th century courts and scholars defined goodwill as the “reputational value” of a commercial enterprise and saw trademarks as a way of using that goodwill.[24] In other words, they saw the exclusive right to use a trademark as a function of the exclusive right to own the goodwill associated with a commercial enterprise.[25] This is consistent with Lockean property theory, which defines property as “the right to exclusive use of the fruits of one’s productive labors.”[26] Goodwill is property because it consists of an exclusive right to the reputational value of a commercial enterprise. But what about trademarks?

According to Mossoff, trademarks are also property, albeit a different kind of property. He argues that trademarks are a form of “use–right” or “usufruct” inherent in commercial goodwill.[27] In property law, a use–right is a property right “necessarily derived from or attached to an accompanying property right.”[28] If goodwill is a property right, and trademarks inhere in goodwill, then trademarks are analogous to a use–right in goodwill.

Mossoff explains his use–right theory of trademarks by analogy to paradigmatic use–rights like riparian rights and easements appurtenant.[29] An easement appurtenant is “a use–right derived from and attached to a dominant estate that permits use of another servient estate.”[30] For example, a right to cross someone else’s land in order to reach your own land is an easement appurtenant. Mossoff argues that a trademark is a property right “appurtenant” to commercial goodwill because it consists in an exclusive right to use a mark, but only in relation to the commercial goodwill it signifies.[31]

Mossoff shows that courts have routinely referred to trademarks as “property” rights “appurtenant” to goodwill.[32] He shows that it is possible to analogize particular features of trademark doctrine to the property doctrine of easements appurtenant. For example, the owner of an easement appurtenant cannot convey it separately from the estate to which it is attached, because doing so would transform it into an “easement in gross.”[33] Likewise, a trademark owner cannot convey it separately from the goodwill to which it is attached, because doing so would transform it into a “trademark in gross.”[34] Moreover, like all use–rights, a trademark exists and is enforceable only insofar as it is actually used in commerce.[35]

As Mossoff observes, this parallelism is obviously not a coincidence. Courts describe trademarks in terms of use–rights because they derived trademark doctrine in substantial part from the doctrine of use–rights.[36] Accordingly, he argues that courts and scholars should continue to analogize trademarks to use–rights. By implication, he argues that they should adopt a theory of trademarks modeled on the Lockean property theory rather than a utilitarian theory. 

III. Trademark “Ownership” & Its Discontents

I found this essay intriguing, but also puzzling. Mossoff convincingly shows that trademarks can be analogized to use–rights in physical property. He provides a compelling argument that the viability of that analogy is not an accident, but a function of the historical development of trademark doctrine. In other words, trademarks resemble use–rights because courts modeled them on use–rights.

But he wants to do more. He wants to show that trademark “is” a property right. Rather, he wants to show that trademarks should be defined as a kind of “property” and afforded the same kinds of exclusive rights as physical property.[37]

He does not achieve that goal. And I do not see how he possibly could, given the nature of his claims.

Mossoff argues that the utilitarian account of trademarks as regulatory entitlements that promote consumer welfare is wrong, because trademarks look like use–rights, and trademark doctrine sprung from the brow of property doctrine.[38] But that misses the point. The project of utilitarianism is not to describe the law as it is, but as it should be. Utilitarians can cheerfully concede all of Mossoff’s points, because they do not care about legal doctrine for its own sake— they care about its results. In other words, Mossoff cannot effectively challenge the utilitarian theory of trademarks because he is not speaking its language.[39]

Mossoff explicitly endorses the Lockean theory of property, which provides that people are entitled to exclusive ownership of the fruits of their labor.[40] If one accepts the Lockean theory of property, it follows that people are entitled to own anything analogous to Lockean property, including trademarks associated with the goodwill in their business.

But utilitarians are consequentialists, who reject Mossoff’s Lockean premise. According to utilitarians, property is purely instrumental, and the purpose of trademarks is only to increase net social welfare. While Mossoff’s arguments will surely speak to those who accept the Lockean theory of property, it is not clear whether they have anything to offer utilitarians, at least with respect to his normative claims.

Indeed, as Mossoff recognizes, other trademark scholars have identified the historical use of commercial goodwill as a justification for conceptualizing trademarks as a form of property.[41] Those scholars argued that the use of “property” metaphors gradually diminished as utilitarian premises began to dominate trademark theory. Mossoff makes a convincing case that trademarks were not actually conceptualized as property in goodwill but “use–rights appurtenant to” goodwill.[42] From a utilitarian standpoint, who cares? It just doesn’t matter what kind of property metaphor you use if the metaphors lead to bad results. 

IV. Trademark as Metaphor

Mossoff also makes a valuable contribution by showing that trademarks can be and have been analogized to use–rights in physical property. Whether or not you think trademarks should resemble use–rights, it may be a helpful way of describing trademark doctrine and how it has evolved over time.

Legal reasoning loves analogies. Indeed, analogical reasoning is arguably the paradigmatic form of common law legal reasoning.[43] The very concept of “precedent” requires analogical reasoning. If a case supplies a rule, analogical reasoning enables a court to apply the rule.[44]

And yet, analogical reasoning has both strengths and weaknesses.[45] It can clarify by enabling people to express ideas more efficiently and effectively. Nothing is more rhetorically powerful than a compelling analogy. But it can also obscure by encouraging people to ignore the practical consequences of adopting a policy. A powerful analogy can normalize an objectively undesirable outcome. Analogies are valuable when they facilitate the expression of an unfamiliar concept in familiar terms. They are dangerous when they enable the use of familiar terms to justify bad decisions.[46]

As I have previously explained, intellectual property metaphors are often unhelpful.[47] Accordingly, the question is whether Mossoff’s analogy to use–rights clarifies or obscures our understanding of trademarks.[48] I am convinced that his analogy helps to clarify our understanding of the historical development of trademark doctrine and why it has adopted certain principles, including the rejection of “trademarks in gross.” But I am not convinced that it helps to clarify our understanding of what trademarks should look like today.

Mossoff’s analogy probably helps explain why most people think trademarks are justified. He is hardly alone in accepting Lockean property theory. While utilitarianism dominates the academy, Lockeanism surely dominates the electorate. And Mossoff provides a convincing explanation of why people who accept Lockeanism tend to think trademarks are normatively justified. He makes explicit a previously unarticulated analogical relationship and helps explain why trademark law took its present form.

But is that form justified? If you accept Mossoff’s Lockean theory of property, then you should ask whether contemporary trademark doctrine is justified as a way of protecting a legitimate right to the fruits of labor. Whether trademarks resemble use–rights in physical property seems entirely irrelevant. Surely, under Lockean property theory, the justification for a property right depends on its intrinsic, metaphysical qualities, not merely its similarity to some other property right. Maybe trademarks are justified on Lockean terms, but can a mere analogy actually prove it?

By contrast, if you accept a utilitarian theory of property, then Mossoff’s entire normative premise is irrelevant. As a practical and political matter, utilitarians should pay attention to why Lockeans think trademarks are justified. But they have no reason to accept those justifications. For utilitarians, Mossoff’s analogy simply provides a helpful way of explaining how trademark law went wrong. If the purpose of trademark doctrine is to enshrine inefficient and unjustified property metaphors where they do not belong, then utilitarians should happily discard it in favor of more efficient doctrines. 

5. Conclusion

 In sum, Mossoff’s essay makes a valuable contribution to scholarship on Lockean theories of intellectual property. Specifically, his use–right analogy provides a helpful way for Lockean theorists to explain how trademarks fit into a Lockean framework. But Mossoff’s analogy does not and cannot show that trademarks must be conceptualized in Lockean terms. For utilitarians who believe that trademarks are merely a means to the end of promoting consumer welfare, Mossoff’s analogy is of formal and historical interest, but no more.   

---

[1] Spears–Gilbert Associate Professor of Law, University of Kentucky School of Law. J.D., New York University School of Law, 2005; M.F.A., San Francisco Art Institute, 1997; B.A, University of California, Berkeley, 1995. Thanks to Ramsi Woodcock and David A. Simon for helpful comments.

[2] Berkey v. Third Ave. Ry. Co., 155 N.E. 58, 61 (1926).

[3] However, as Ed Timberlake has observed, “Though the number of types of ‘intellectual property’ scholars may be few, innumerable are the unrelated subjects thrown into this conceptual junk drawer.” Ed Timberlake (@TimberlakeLaw), Twitter (Sept. 7, 2018, 11:14AM).

[4] See, e.g., Adam Mossoff, Intellectual Property and Property Rights ix (Adam Mossoff, ed. 2013).

[5] Id. at ix.

[6] See Mossoff, supra note 4.

[7] Adam Mossoff, Trademark as a Property Right, 107 Ky. L.J. XX, 3 (2018).

[8] Id. at 4.

[9] For a thoughtful review of Mossoff’s essay, see Camilla Alexandra Hrdy, Adam Mossoff: Trademarks As Property, Written Description (Sept. 5, 2017, 9:52 PM), https://writtendescription.blogspot.  com/2017/09/adam-mossoff-trademarks-as-property.html.

[10] See Mossoff, supra note 7, at 4–5 (highlighting how earlier courts recognized that trademark is a “property right”).

[11] See Intellectual Property, Stanford Encyclopedia of Philosophy, October 10, 2018, at https://plato.stanford.edu/entries/intellectual-property/ (discussing theories of copyright).

[12] See Mossoff, supra note 7, at 4.

[13] Id. at 3.

[14] Id. at 2–3.

[15] Id. While Mossoff consistently refers to this as a “legal realist” theory of trademarks, it is more properly characterized as a “utilitarian” theory of trademarks, or more specifically, a “welfare economic consequentialist” theory of trademarks. Legal realism is a descriptive theory about how law actually works, and does not imply any particular normative theory. Of course, utilitarianism and other consequentialist normative theories are common among legal realists.

[16] Mark P. McKenna, The Normative Foundations of Trademark Law, 82 Notre Dame L. Rev. 1839, 1843 (2007).

[17] See, e.g., Mark A. Lemley, The Modern Lanham Act and the Death of Common Sense, 108 Yale L.J. 1687, 1688 (1999).

[18] See Mossoff, supra note 7, at 3.

[19] Id. at 6.

[20] See id. at 6–7.

[21] Id. at 7–8.

[22] Id. at 10–11.

[23] Id. at 11–12.

[24] Id. at 14–15.

[25] Id. at 15–16.

[26] Id. at 17.

[27] Id. at 20–21. A “usufruct” is a “legal right of using and enjoying the fruits or profits of something belonging to another.” Merriam Webster, Usufruct, https://www.merriam-webster.com/dictionary/ usufruct (last visited Oct. 20, 2018).

[28] Id. at 21.

[29] Id. at 21.

[30] Id. at 22 (citing the Restatement (Third) of Property: Servitudes § 1.2(1) (Am. Law Inst. 2000)).

[31] Id. at 23–25.

[32] Id. at 24–25.

[33] Id. at 29–30.

[34] Id. at 29–32.

[35] Id. at 33.

[36] Id. at 37.

[37] See Camilla Alexandra Hrdy, Adam Mossoff: Trademarks As Property, Written Description (Sept. 5, 2017, 9:52 PM), https://writtendescription.blogspot.com/2017/09/adam-mossoff-trademarks-as-property.html (“In other words, Mossoff's main contribution here is not actually the goodwill–to–trademark linkage. Rather, it is his extensive use of the historic case law and detailed application of Locke's labor theory to justify a trademark as property.”).

[38] See Mossoff supra note 7, at 32.

[39] See, e.g., Lemley, supra note 17.

[40] John Locke, Second Treatise of Government § 27 (C. B. Macpherson ed., Hackett Pub. Co., Inc. 1980) (1690).

[41] Mossoff, supra note 12, at 7–9 (discussing Robert G. Bone, Hunting Goodwill: A History of the Concept of Dilution in Trademark Law, 86 B.U. L. Rev. 547, 569­–72 (2006); Mark P. McKenna, The Normative Foundations of Trademark Law, 82 Notre Dame L. Rev. 1839 (2007)).

[42] Mossoff, supra note 17, at 23–27.

[43] See generally, Lloyd Weinreb, Legal Reason: The Use of Analogy in Legal Argument (2005); Cass R. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741 (1993).

[44] See generally, David A. Simon, A Philosophy for Moral Rights?: The Self, Society, & the Author-Work Relation, Chapter 4: Failed Analogies to Explain the Relation Between Author and Work (unpublished dissertation) at 6.

[45] Id. at 7–10.

[46] Id.

[47] Brian L. Frye, IP as Metaphor, 18 Chap. L. Rev. 735 (2015).

[48] See generally, Simon, supra note 44 (asking whether various analogies clarify or obscure the nature of the author–work relationship).

Throwing the Challenge Flag on the NFL’s Collective Bargaining Agreement

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Student Note | 107 KY. L. J. ONLINE | Volume 107

Throwing the Challenge Flag on the NFL’s Collective Bargaining Agreement

Joseph T. McClure[1]

I. Introduction

The National Football League (“the NFL” or “the League”), founded in 1920 and comprising 32 teams, is the most watched and most profitable professional sports organization in the United States.[2] Each team is allowed to roster 53 players for a league total of 1,696 players.[3] In the 2016 season, the League suspended 66 players, or approximately 4 percent of all players for various violations of NFL rules.[4] From 2002 to 2009, the League suspended just 55 players total.[5] The 2016 season is not merely an anomaly; the League has suspended 297 players since 2011, the year the NFL and the NFL Players’ Association (“NFLPA”) negotiated the current Collective Bargaining Agreement (“CBA”).[6] This astonishing rise in the number of suspended players necessitates a closer look at the power the League exerts over its employees in the context of disciplinary action.

Collective bargaining agreements are negotiated commercial contracts between sophisticated parties, typically between a labor organization and an employer.[7] In the employment context, the contract governs the parties’ relationship, establishing terms and conditions of employment as well as policies and procedures for resolving disputes.[8] Collective bargaining agreements are typically governed under the National Labor Relations Act (“NLRA”).[9] Many collective bargaining agreements contain arbitration clauses to avoid litigation and reduce the costs of resolving disputes between the parties.[10] Arbitration clauses are typically governed by the Federal Arbitration Act.[11]

Other professional sports organizations often operate under similar collective bargaining agreements.[12] However, procedures for dispute resolution are drastically different in other professional sports organizations. For example, the National Basketball Association (the “NBA”) and the NBA Players’ Association (“NBAPA”) have agreed to appoint a “Grievance Arbitrator” to resolve all disputes.[13] This Grievance Arbitrator is completely independent, and appointed at the consummation of the collective bargaining agreement to serve a term that runs concurrently to the duration of the agreement.[14] The Grievance Arbitrator may be removed by notice of discharge filed by either the NBA or NBAPA, and the parties must then agree to the appointment of a replacement arbitrator.[15] If the parties are unable to agree on a replacement arbitrator, the parties must jointly request the International Institute for Conflict Prevention and Resolution (“CPR”) “or other organization(s) as the parties may agree upon” to submit to the parties eleven (11) attorneys who have no actual or apparent conflicts within the past five (5) years.[16] The parties may choose from these eleven names, or else delete five (5) of the names, and return the remaining six (6) names to the CPR Institute.[17] From the remaining six names, the CPR Institute will choose a new Grievance Arbitrator.[18] Unlike the NFL, the NBA Collective Bargaining Agreement provides clear procedures for dispute resolution, including explicit evidentiary procedures.[19] These procedures clearly provide for a discovery process, the exchange of all relevant evidence and witness lists, and require the parties to agree on a statement of the issues prior to commencement of the arbitration proceeding.[20]

Under each collective bargaining agreement negotiated by the NFL and NFLPA since 1968, the Commissioner of the NFL has retained not only the exclusive power to impose disciplinary action, but also the power to act as the arbiter for any appeal of that action.[21] As previously noted, this arrangement is extraordinary. The NFL Collective Bargaining Agreement does not provide the parties any procedural remedies to remove an arbitrator for bias or select a new arbitrator subject to agreement of both parties.[22] Additionally, the procedures defined by the NFL’s Collective Bargaining Agreement are vague, and the process for admitting and utilizing evidence is largely undefined. The combination of broad power afforded to the Commissioner, and the vague standard of dispute resolution procedures have allowed the NFL to take advantage of dispute resolution procedures to the detriment of their players. This Note seeks to examine the power of the NFL Commissioner under Article 46 of the current CBA against the backdrop of the parties’ negotiations. In addition, this Note seeks to examine recent high–profile challenges to exercises of the Commissioner’s Article 46 power in the court system, scrutinizing Article 46’s adherence to the Federal Arbitration Act (“FAA”). This Note argues that the precedent set in Brady II was incorrect, has led to at least one other incorrect decision, and empowers the NFL to continue to skirt the requirements of fundamental fairness imposed by the Federal Arbitration Act.

 II.  The NFL’s Current Collective Bargaining Agreement

Negotiations for the current CBA began in 2010, spurned largely by Commissioner Goodell’s threat to “lock out” the players if no agreement was reached by March 1, 2011.[23] The most prominent issues included player health and safety protections such as limits on “two–a–days” and offseason practices, as well as full–contact practices in both the pre–season and post season.[24] The NFLPA also focused on securing medical benefits for the players, including the creation of neuro–cognitive benefits for players with concussions and other similar football–related injuries.[25] Finally, the NFLPA negotiated for revenue sharing for the players.[26] This current CBA is effective through the 2020 NFL season.[27] Notably, negotiations did not focus on player discipline or the procedures and protections afforded to players accused of misconduct on or off the field. Statistics mentioned in the introduction illuminate the importance of player disciplinary procedures and the powers afforded to the NFL that were not considered in negotiations. [28] The 400% increase in player suspensions following the 2011 negotiations is astonishing, and it’s clearly not an event the parties contemplated in their negotiations.[29]

III. Adherence to the Federal Arbitration Act

The Federal Arbitration Act (“FAA”) was enacted by Congress to enable judicial oversight of private dispute resolution, or arbitration. Arbitrators are not bound by the formal rules of evidence and may draw on their own personal knowledge when making their awards.[30] However, Congress did not intend for arbitration to be the Wild West of dispute adjudication and resolution.[31] Section 10 provides grounds for vacating arbitration awards, including “where the arbitrators were guilty of misconduct in . . . refusing to hear evidence pertinent and material to the controversy. . . . .”[32] Courts have also recognized grounds for vacatur where the process of the arbitration denies a party “fundamental fairness.”[33] The case law that surrounds these two pillars of Section 10 is erratic, especially in regard to fundamental fairness. Evidentiary findings of the arbitration are generally not subject to review, but when the findings (or denial of process to make findings) lead to fundamental unfairness, Courts have a role in ensuring equity.[34] In other words, when the arbitrator fails to make findings of material and pertinent information, the error itself amounts to misconduct providing grounds for vacatur of the award on the grounds of fundamental fairness.[35] This is true whether the omission of material and pertinent evidence is intentional, a product of poor judgment, or by mistake; all omissions of material and pertinent evidence amount to error and open the award to judicial review.[36] The following cases illustrate cognitive dissonance in how Section 10 of the FAA operates to protect parties against fundamental unfairness in private dispute resolutions.

IV. Tom Brady

On January 18, 2015, the New England Patriots led by quarterback Tom Brady defeated the Indianapolis Colts in the American Football Conference Championship game and advanced to the Super Bowl.[37] Shortly thereafter, the NFL began an investigation into the Patriots’ use of underinflated footballs during the first half of the football game.[38] The investigation was conducted by co–lead investigators Jeff Pash and Theodore Wells (“Pash/Wells Investigation”).[39] Pash was serving as the NFL Executive Vice President as well as NFL General Counsel.[40] Wells was an attorney at the firm of Paul, Weiss, Rifkind, Wharton, & Garrison (“Paul Weiss Law Firm” or “Paul Weiss”).[41] At the conclusion of the investigation, Pash and Wells issued a report (“Wells Report”) in which they determined that “more probabl[y] than not,” Brady was “generally aware” of activities of two Patriot equipment staff members who “more probab[ly] than not” deliberately released air from the balls prior to the beginning of the AFC Championship Game.[42] Exercising the disciplinary powers of the CBA, the Commissioner handed Tom Brady a four-game suspension without pay.[43] The Commissioner also disciplined the Patriots organization by fining the team $1 million and garnishing two picks in the upcoming NFL draft.[44]

On May 14, 2015, Tom Brady appealed[45] the decision pursuant to the CBA arbitral process.[46] Pursuant to CBA Art. 46 § 2(a), Commissioner Goodell designated himself as arbitrator to hear Brady’s appeal.[47] Brady immediately made a motion seeking Goodell’s recusal, arguing among other things that the Commissioner “cannot lawfully arbitrate a matter implicating the competence and credibility of NFL staff,” and noting that in other high profile arbitrations that Goodell had publicly commented on, Goodell had recused himself (Rice[48] and Bounty–Gate[49]).[50] Brady’s motion was denied by Goodell, citing the Commissioner’s Article 46 powers to act as arbitrator at his discretion.[51] Brady made a motion to compel “all documents created, obtained, or reviewed by NFL investigators” in connection with the investigation.[52] This motion, too, was denied by Goodell, who cited to Art. 46 and asserted that it provides for “tightly circumscribed discovery and does not contemplate the production of any other documents in an Article 46 proceeding.”[53] Brady also made a motion seeking to compel testimony from NFL Executive Vice President and co–lead investigator Jeff Pash.[54] Goodell also denied this motion, arguing that as the given absence of defined scope in Article 46, it is within the Commissioner’s discretion to determine the scope of the presentations.[55] In support of this denial, Goodell stated “Pash, the NFL’s General Counsel, does not have any first–hand knowledge of the events at issue here.”[56]

On July 28, 2015, following the arbitral hearing, Goodell published a final decision finding Brady “knew about, approved of, [and] consented to” a scheme to deflate footballs prior to the AFC Championship Game.[57] (As the District Court noted, this finding “goes far beyond the ‘general awareness’ finding in the Wells Report or the disciplinary notice sent to Brady).[58]

Before the beginning of the 2015 NFL season, the Southern District of New York ordered the NFL to vacate Tom Brady’s suspension on the grounds of fundamental unfairness.[59] The Court found Goodell’s denial of Brady’s motions to compel production of documents and compel testimony of Pash violated [the Federal Arbitration Act] on the grounds of fundamental unfairness.[60] In light of its finding on these grounds, the Court did not reach a determination on Brady’s claims of evident partiality under § 10(a)(2).[61] The Court noted that its role in review of an arbitral process is limited but acknowledged the FAA allows vacatur of a decision where the arbitrator refused to hear evidence material and pertinent to the controversy, or where there is evident partiality.[62] A Court is not required to confirm an award obtained without fairness and due process.[63] The Court’s role is to review the arbitrator’s award to ensure he is effectuating the intent of the parties manifested in the collective bargaining agreement without “dispens[ing] his own brand of industrial justice.”[64]

The District Court was correct in finding the arbitrator’s denial of Pash’s testimony and the refusal to compel production of relevant documents constituted a fundamentally unfair hearing process. The Commissioner proctored no convincing reason for these denials, citing only his discretion as arbitrator under Article 46 of the CBA.[65] This exercise of discretion is insufficient in and of itself. Pash was the co–lead investigator and had access to all documents created and obtained during the course of the Pash/Wells Investigation.[66] Additionally, this information was also available to Wells. Significantly, Wells enjoyed the dual role as “independent investigator” and partner at Paul Weiss law firm, and the firm retained by the NFL for representation during the arbitration process.[67]

Given this dual role, it is inconceivable to presume the attorneys of the Paul Weiss law firm could have simultaneously fulfilled their duty to zealously represent their client in preparing for the hearing while conducting an “independent investigation.”[68] In previous arbitral proceedings involving the CBA at issue here, independent arbitrators had compelled testimony of NFL investigators despite the contention from the NFL that testimony would be cumulative or duplicative.[69] Here, without any contention as to the ways in which such testimony would be cumulative or duplicative, the District Court correctly found the Commissioner’s denial of Brady’s motion to compel testimony presented fundamental unfairness.[70]

The District Court also correctly found this denial was prejudicial to Brady and foreclosed the possibility of exploring the purported “independence” of the investigation.[71] As to the investigative files themselves, Goodell’s denial of Brady’s motion to compel production also rests on discretion alone, without any convincing substantive reason.[72] For example, Goodell asserted that “the Paul Weiss interview notes played no role in the disciplinary decisions; the Wells report was the basis for those decisions.”[73]

This statement is only barely true. While the decision was ultimately constructed from the Wells Report, the Wells Report was obviously constructed from the underlying investigative documents.[74] These investigative documents were available to the NFL throughout the arbitration, given that the Paul Weiss law firm acted as counsel retained by the NFL for both the investigation and representation purposes throughout the arbitral process.[75]

Additionally, the Commissioner attempts to argue it both ways, asserting that Article 46 sufficiently defines the discovery process, but also that its absence of clarity allows the Commissioner to exercise his discretion to make up the discovery rules out of thin air.[76] The District Court correctly recognized that absent provisions precluding the production of these documents, the arbitrator has the affirmative duty to ensure relevant documents are made available to the other party.[77] Failure to do so is a violation of fundamental fairness and thus grounds for vacating the award under §10(a)(3).[78]

Following this decision by the District Court, the League appealed, seeking vacatur of the District Court decision and reinstatement of Brady’s suspension.[79] The Circuit Court granted this appeal over a dissent, reversing and remanding the case to the District Court with instructions to confirm the arbitrator’s award.[80] This Note argues the Circuit Court’s decision  in “Brady II” is wrong and has set defective precedent in favor of the NFL in similar situations, empowering the League to exercise extraordinary unchecked power over its players in disciplinary proceedings. This Note further contends that the essence of the reasoning on which the Circuit Court relies for its decision is contrary to the requirement of the FAA to mandate fundamental fairness as an unwaivable and unmodifiable element of all arbitration agreements, regardless of the discretion granted to the arbitrator. Furthermore, the Circuit Court failed to adequately consider the implications of the conflict of interest presented by allowing one party to the dispute to act as the proverbial “judge, jury, and executioner” without regard to overarching fundamental fairness mandated by the FAA.

The Circuit Court rightly acknowledges that arbitrators appointed by a collective bargaining agreement must be allowed to effectuate the intent of the parties to resolve disputes outside the judicial system.[81] The Circuit Court astutely points out that collective bargaining agreements are the product of negotiations which reflect the priorities of the parties, and arbitrators are chosen because of their trusted judgment to “interpret and apply the agreement in accordance with . . . the various needs and desires of the parties.”[82] As discussed previously in this Note, player discipline was not a priority of either the NFL or the NFLPA at the time of the 2011 negotiations.[83] Prior to 2011, League discipline of players was rare, often inconsequential, and performed outside of the public eye.[84] The Circuit Court treats Article 46 of the CBA as if it were meticulously negotiated by the parties, resulting in a determination that the NFL should be permitted to act with plenary dictatorial power to bring accusations of misconduct, use League resources to conduct opaque investigations, and issue decrees of guilt or innocence without providing the accused with access to documents from the investigation, all in the name of providing the League with “discretion.”[85] This decision is bewildering in its result, but more troublingly, it is unsupported by sound logic and has resulted in perpetual harm.

The Circuit Court held that the Commissioner’s decision to exclude the testimony of Pash did not raise questions of fundamental fairness, and denial of the production of documents is not a grounds for vacatur of the award because the CBA did not require the exchange of such notes.[86] In these holdings, the Circuit Court ignores the obvious conflicts of interest presented by the Commissioner’s refusal to recuse himself and the retainer of the Paul Weiss law firm as both investigator and representative counsel.

The Circuit Court reasons that arbitrators do not need to comply with strict evidentiary rules and retain discretion to admit or exclude evidence.[87] This is certainly true, but the testimony of a lead investigator is undeniably pertinent and material to the controversy, and thus exclusion is grounds for vacation of an award.[88] While the arbitrator does not have to follow the Federal Rules of Evidence, common sense notions of fundamental fairness suggest the need to include testimony from a lead investigator. Instead, the Circuit Court suggests that pursuant to the parties’ bargain, the CBA would theoretically allow the Commissioner to impose punishment, then uphold his own decision on appeal without any investigation or hearing any evidence because this is what the parties must have intended by giving the Commissioner broad authority to regulate procedural matters.[89] The arbitrator’s discretion is bound by the intent of the parties in the collective bargaining agreement, and it cannot be argued in good faith that the NFLPA would have intentionally awarded the Commissioner with this sort of dictatorial disciplinary power.

As to the Commissioner’s denial of Brady’s motion to compel production of investigative documents, the Circuit Court reasons that because the CBA does not provide procedural rules for discovery, the discretion of the Commissioner is absolutely controlling.[90] This is incorrect. In the absence of procedures, the Commissioner is bound by fundamental fairness in exercising discretion and must effectuate the intent of the parties.[91] The Circuit Court reasons that the parties intentionally excluded discovery procedures because elsewhere in the CBA, a proceeding allows for “reasonable and expedited discovery . . . .”[92] This argument is flawed. The difference in language between Art. 15 § 3 – 

. . . Arbitrator shall grant reasonable and expedited discovery upon the application of any party where, and to the extent, he determines it is reasonable to do so. Such discovery may include the production of documents and the taking of depositions. 

(emphasis added), and Art. 46 (“the parties shall exchange copies of any exhibits upon which they intend to rely”) is merely semantics.[93] Both provisions contemplate that opposing parties should be allowed to request documents from their adversary. Both provisions also allow collection and presentation of material and pertinent documents from third parties. For the Commissioner to deny Brady’s request presents fundamental unfairness, but the Circuit Court props up this ridiculous assertion by concluding that the Commissioner was simply applying the CBA as written.[94] (How can a provision purported to be intentionally excluded also be interpreted as written? The author remains puzzled.)

 V. Ezekiel Elliott

In July 2016, Dallas Cowboys running back Ezekiel Elliot was investigated by Ohio law enforcement concerning allegations of domestic violence.[95] More than a year later, in August of 2017, the Columbus City Attorney’s Office issued a statement that it would not press charges against Elliott because of “conflicting and inconsistent information.”[96] However, the NFL initiated its own investigation, tapping Kia Roberts and Lisa Friel to lead the investigation and prepare a report (“Elliott Report”).[97] After reviewing the Elliott Report, the Commissioner imposed on Elliott a six–game suspension pursuant to the League’s Personal Conduct Policy.[98] Elliott and the NFLPA appealed.[99] During the appeal, the NFLPA compelled testimony from Roberts.[100] This testimony highlighted Roberts’ conclusions that Elliott’s accuser was not credible and had provided inconsistent statements, yet Roberts had been excluded from a meeting with Goodell, Friel, and outside advisors when the decision to suspend Elliott was finalized.[101] The NFLPA sought to compel testimony to determine whether key evidence and critical facts had been concealed from decision–makers, but the arbitrator denied this request.[102]

On September 1, 2017 (the day following the arbitrator’s announcement that a decision was forthcoming), the NFLPA and Elliott sued the NFL seeking vacatur of the impending decision and a temporary restraining order (or preliminary injunction).[103] The action was commenced in the Eastern District of Texas.[104] On September 5, 2017, the arbitrator issued his decision confirming the Commissioner’s six–game suspension, and the NFL filed suit in the Southern District of New York seeking confirmation of the award.[105] The motivation behind these dueling lawsuits is Brady II, as the NFL sought to take advantage of a particular favorable decision, and the NFLPA sought to avoid it. With the advantage of knowing exactly when the decision would be issued, the NFL would always be able to obtain their preferred venue.

In ruling on the NFLPA’s motion for a temporary restraining order (and preliminary injunction) which would stay the suspension, the Texas District Court noted the “unique and egregious facts, necessitating court intervention.”[106] The District Court based its concern on the FAA, citing to fundamental unfairness as a reason for intervening into otherwise bargained–for arbitration.[107] In an opinion eerily similar to that of the court in Brady I, the District Court raised concerns that the arbitration process had denied the admission of key witness testimony and documents, and such denial amounted to serious misconduct by the arbitrator.[108] Namely, the District Court expressed concern that certain conclusions of Roberts were excluded from the Elliott Report (namely that Elliott’s accuser’s allegations were not credible), despite Roberts sharing these conclusions with Friel.[109] In fact, Friel colluded with counsel for the NFL and jointly made the decision to exclude Roberts’ conclusions from the report and from further discussions with the Commissioner regarding discipline.[110] Moreover, these conclusions were suppressed until the arbitration hearing itself, and the District Court found that if the NFL had succeeded in its overall goal, Roberts’ conclusions would still be concealed from Elliott and the NFLPA.[111]

Given this suppression, the District Court concluded the arbitrator’s denial to compel testimony from Goodell regarding his knowledge of Roberts’ conclusions presented gross error and resulted in a fundamentally unfair hearing.[112] The District Court noted the decisions of Brady I and Brady II, stating, “the circumstances of this case are unmatched by any case this Court has seen.”[113] Seemingly, the Court noted the NFL’s willingness to stretch the boundaries of fundamental fairness in its arbitration process even further than the Second Circuit was willing to overlook.[114] The Court noted that fundamental unfairness infected Elliott’s appeal from the beginning, and “[a]t every turn, Elliott and the NFLPA were denied the evidence or witnesses needed to meet their burden.”[115] On September 8, 2017, the District Court granted the motion for temporary restraining order and preliminary injunction enjoining the arbitrator’s decision, thus effectively lifting the suspension pending a final ruling on the merits.[116]

The NFL appealed to the Fifth Circuit, arguing that because the NFLPA’s petition was filed before a final arbitration decision had been issued, the District Court lacked subject matter jurisdiction and the lawsuit was premature.[117] Over a dissent, the Circuit Court agreed with the NFL, vacating and remanding with instructions to dismiss the case for lack of subject matter jurisdiction.[118] The dissent acknowledged that the integrity of the arbitration process had been impugned by the NFL’s suppression of information during the arbitration process.[119] However, with this dismissal, litigation could only continue in the Southern District of New York, bound by the misguided precedent of Brady II.

The Southern District of New York first issued an opinion on October 17, 2017, maintaining the status quo and preserving the temporary restraining order to stay Elliott’s suspension.[120] The short opinion issued by Judge Crotty (a “Part I” substitute judge) granted the TRO and deferred consideration of the preliminary injunction to Judge Failla (who was on vacation at the time). In this short opinion, Judge Crotty noted Elliott and the NFLPA were “deprived of opportunities to explore pertinent and material evidence,” and refused to accept the NFL’s argument that because of Brady II, the NFLPA is foreclosed from making a fundamental fairness argument to attack the arbitrator’s award.[121]

Judge Failla held a hearing and issued an opinion on October 30, 2017.[122] The decision found the arbitration proceedings in accordance with the CBA and fundamental fairness, and denied the NFLPA’s motion for a preliminary injunction.[123] The opinion relied heavily on the Brady II decision, similarly finding that despite withholding key evidence and witnesses, the arbitration process was fundamentally fair.[124] Specifically, the Court declined to find that the suppression of Roberts’ exculpatory conclusions amounted to clear error resulting in fundamental unfairness.[125] Furthermore, the Court affirmed the fairness of the arbitrator’s decision not to compel testimony of Goodell as to whether he had been made aware of Roberts’ conclusions.[126] In reliance on these decisions, the Court explicitly points to the Brady II precedent, finding that in Brady II, the NFLPA’s request for interview notes was comparable to this case.[127] On emergency appeal to the Second Circuit, the NFLPA’s petition was summarily denied, the case was effectively dead, and Ezekiel Elliott was effectively suspended based on sketchy evidence and suppressed testimony.[128]

 VI. NFL Commissioner as Judge, Jury, and Executioner

As highlighted in the cases of Tom Brady and Ezekiel Elliott, the Second Circuit has produced a precedent that incorrectly and inequitably interprets the “fundamental fairness” requirement of the FAA and its application to NFL Collective Bargaining Agreement. The decision in Brady II is rooted in the idea that the NFLPA and the NFL negotiated disciplinary appeal procedures at arm’s length and could fully appreciate the impact the negotiations would have on the League and its players over the next decade. This was simply false, as the empirical data shows, and without a crystal ball, disciplinary action appellate procedure was simply not a priority for the NFLPA or the NFL. In the absence of intent to contract for a grant of unilateral power to the NFL Commissioner to act as prosecutor, judge, jury, and executioner, Courts should lean more heavily on ideas of fundamental fairness. Courts should be exceptionally skeptical in light of the arbitration procedures (or lack thereof) that effectively grant the NFL, a party in the supposed neutral arbitration, the power to control the information provided to the player–appellees and ultimately, the evidence available to be presented during the arbitration hearing.

One court has made this logical leap, holding a standard provision in NFL contracts designating the Commissioner (or his assignee) as arbitrator is unconscionable and thus, unenforceable.[129] In a case in front of the Missouri Supreme Court, a former employee of the St. Louis Rams successfully established that allowing the Commissioner of the NFL to arbitrate disputes of NFL policy constituted an unconscionable contract term.[130] The Court agreed that because the Commissioner is an employee of the League, acting as sole arbitrator is unconscionable where the Commissioner is given “unfettered discretion to establish the rules for arbitration,” rendering the provision unenforceable.[131] While the author acknowledges there is a difference in a dispute between team management and employees, and a dispute between players and the league, the principles and underlying conflicts are not dissimilar. This part of the decision from the Missouri Supreme Court is not difficult to accept or justify: parties to the dispute cannot also act as impartial arbitrators! When the arbitrator is not impartial, the integrity and neutrality of the proceedings have been impugned, and a presumption of “fundamental unfairness” is created. This comports with common sense. Viewed without cynicism, in the event of disciplinary appeals, Article 46 of the CBA requires an interested party to promulgate procedural rules without contractual framework and unrestrained from precedent. Additionally, Article 46 requires the Commissioner to put aside his interests and make a decision as the sole arbitrator, presiding over the issue of whether to overturn his own previous decision. The full extent of issues was not addressed by the Court in Brady I, as the case was decided on other grounds. But the Second Circuit’s decision to overturn the District Court and uphold the arbitration award without addressing the root of the fundamental unfairness poisoned the well for future NFL players–turned–litigants who have received kangaroo–court justice through the NFL’s arbitration procedures.

VII. What’s Next?

            The NFL’s collective bargaining agreement has been widely decried in national sports media. The NFLPA has called the process “a sham and a lie” and called for the NFL Management Council to step in and reevaluate the process moving forward.[132] However, the bottom line is that both the NFL and the NFLPA are stuck in this agreement until 2020 barring extraordinary circumstances. Given this unfortunate reality, it is worth examining other successful collective bargaining agreements and proposing a suggested structure for the next negotiated agreement between the NFL and NFLPA. In closing, this Note seeks to propose revising Article 46 of the NFL CBA in the following ways.

As part of the terms for the 2020 Collective Bargaining Agreement, the NFL and the NFLPA should stipulate to the appointment of a single arbitrator for all off–field player conduct disciplinary appeals to serve a term equal to the duration of the Collective Bargaining Agreement. The Commissioner of the league currently has the power to impose discipline for off–field conduct detrimental to the League, and that power should remain vested with the Commissioner. All appeals of his disciplinary decisions should be heard by a single arbitrator in the interests of uniform decision–making and consistency of dispute resolution. Without cause, the parties should have the option to remove the arbitrator by simple notice and replace the arbitrator from a list of eleven (11) candidates stipulated by the parties at the consummation of the collective bargaining agreement. Should the parties not agree as to the selection of the replacement arbitrator, the parties should be allowed to strike eight (8) names from the stipulated list and allow a pre–determined designated representative select from the remaining three (3) names. While the parties would retain the option to remove the arbitrator at–will, the power to remove should be limited only to future appeals. The parties would not have the power to remove the arbitrator from any appeals processes that had already been initiated by filing notice of such appeal.Finally, instead of adopting their own half–measure procedures for arbitration, the parties should stipulate that proceedings must follow an established framework for arbitration. The parties should adopt the procedures from the American Arbitration Association. Established procedures will further enhance the credibility of the proceedings in the eyes of the fans, players, and the League stakeholders. Furthermore, adoption of established procedures decreases the risk of misconduct or injustice in the arbitration proceedings.

VIII. Conclusion

The purpose of collective bargaining agreements is to ensure a balance of power between labor organizations and employers. In the context of professional sports, collective bargaining agreements ensure the players are adequately represented and are given the opportunity to preserve a balance of power with their governing organizations.

The CBA between the National Football League and the NFLPA is flawed because it doesn’t accurately capture either of the parties’ intent to create disciplinary procedures. This flaw results from a lack of information or motivation to negotiate such terms, given the relatively few player suspensions imposed prior to 2011. However, the Second Circuit’s decision in Brady II has given the Commissioner of the NFL broad dictatorial powers to perform a range of investigative and adjudicative roles within the player disciplinary process. This decision was incorrect and misinterprets the role of the “fundamental fairness” requirement of the FAA. This decision created broad and binding precedent and is used as a weapon by the NFL to avoid consequences for unfair adjudicatory processes. If allowed to proceed in another Circuit court, players may be able to impose a check on this power. However, given the mismatch of information availability, the NFL will always have the first–mover advantage in choice of venue. Finding no fundamental unfairness in a process which conceals material and pertinent information from the accused and allows the arbitrator to effectively act as judge, jury, and executioner requires a suspension of common sense. The Second Circuit should revisit the decision in Brady II and either qualify or overturn this decision in the interests of fundamental fairness.

In the process of negotiating the 2020 Collective Bargaining Agreement, the NFL and NFLPA should revisit Article 46 and implement several changes to increase the validity and credibility of appeals proceedings. The parties should stipulate to an unconflicted arbitrator who serves a defined term and may be removed at–will at the request of either party. Furthermore, the parties should adopt recognized framework for all arbitration proceedings. The aforementioned steps would serve to increase the credibility of the appeals process in the eyes of the fans, players, and League stakeholders and lead to fewer disputes requiring resolution in the courts.  

---

[1] J.D. Candidate May 2019.

[2] Statista, National Football League (NFL) – Statistics and Facts, https://www.statista.com/topics/ 963/national–football–league/ (last visited Jan. 2, 2019); Jim Norman, Football Still Americans’ Favorite Sport to Watch, Gallup (Jan. 4, 2018)https://news.gallup.com/poll/224864/football–americans–favorite–sport–watch.aspx.

[3] NFL Collective Bargaining Agreement 145 (2011).

[4] NFL Fines & Suspensions, Spotrac, https://www.spotrac.com/nfl/fines-suspensions/2016/ (last visited Jan. 2, 2019).

[5] NFL Fines & Suspensions, Spotrac, http://www.spotrac.com/nfl/fines–suspensions/ (last visited Jan 2, 2019) (follow hyperlink; change your “viewing” year to the specific year you desire to view and change your select type to suspensions).

[6] Id.

[7] Cornell Law School, Collective Bargaining, https://www.law.cornell.edu/wex/collective_ bargaining (last visited Jan. 2, 2019).

[8] Id.

[9] See 29 U.S.C.S. § 151 (2018).

[10] Lynne MacDonald, What Are the Benefits of Employment Arbitration?, Chron, https://smallbusiness.  chron.com/benefits-employment-arbitration-14693.html (last visited Jan. 2, 2019).

[11] See 9 U.S.C.S. § 1, 3 (2018).

[12] Compare NBA – NBPA Collective Bargaining Agreement (2017), and MLB Collective Bargaining Agreement (2012).

[13] See, NBA Collective Bargaining Agreement 399 (2017).

[14] Id.

[15] Id. at 399–400.

[16] Id.

[17] Id.

[18] Id.

[19] See id. at 397–98.

[20] Id.

[21] Mike Florio, Commissioner’s power under Article 46 has been present since the first CBA, NBC Sports (May 17, 2015, 7:18PM), https://profootballtalk.nbcsports.com/2015/05/17/commissioners-power-under-article-46-has-been-present-since-the-first-cba/.

[22] NFL Collective Bargaining Agreement 113–15; 117–18 (2011).

[23] NFL locks out players, who file suit, ESPN (Mar. 12, 2011), http://www.espn.com/nfl/ news/story?id=6205936 [hereinafter “NFL Lockout”].

[24] Nate Davis, NFL, players announce new 10–year labor agreement, USA Today (July 25, 2011), http://content.usatoday.com/communities/thehuddle/post/2011/07/reports-nfl-players-agree-to-new-collective-bargaining-agreement/1#.XC0IZyOZPBI.

[25] Id.; Former Players Receive New Neuro–Cognitive Disability Benefit, NFLPA (Dec. 7, 2012), https://www.nflpa.com/news/all–news/former–players–receive–new–neuro–cognitive–benefit.

[26] Gregg Rosenthal, The CBA in a nutshell, Pro Football Talk (July 25, 2011, 2:03 PM), https://profootballtalk.nbcsports.com/2011/07/25/the–cba–in–a–nutshell/.

[27] NFL Players Association, Collective Bargaining Agreement 1 (2011).

[28] See supra footnotes 1–6 and accompanying text.

[29] See supra footnotes 4–6 and accompanying text.

[30] Bernhardt v. Polygraphic Co. of America, 350 US 198, 203 (1956).

[31] 9 U.S.C. § 10 (2012).

[32] Id.

[33] Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir. 1997).

[34] See Areca, Inc. v. Oppenheimer & Co., Inc., 960 F. Supp. 52, 54–55 (S.D.N.Y. 1997).

[35] See Shamah v. Schweiger, 21 F. Supp. 2d 208, 214 (E.D.N.Y. 1998).

[36] See generally, Bell Aerospace Co. Div. of Textron v. Local 516, 500 F.2d 921, 923 (1974) (examining the mishandling of evidence not through the lens of intent but through the ultimate impact on the arbitration); Hoteles Condado Beach v. Union de Tronquistas Local 901, 763 F.2d 34, 39–40­ (1st Cir. 1985) (examining the weight given to evidence based upon the prejudice shown to the parties, not through motive); Teamsters, Local Union 657 v. Stanley Structures, Inc., 735 F.2d 903, 906 (5th Cir. 1984) (commenting that courts are restricted when looking at arbitration proceedings to examine whether that proceeding was fundamentally unfair); Transit Cas. Co. v. Trenwick Reinsurance Co., 659 F. Supp. 1346, 1354–1355 (S.D.N.Y. 1987) (determining whether the arbitrator either was guilty of misconduct or had manifest disregard for the law).

[37] Colts vs. Patriots – Game Summary, January 18, 2015, ESPN, http://www.espn.com/nfl/game?  gameId=400749520 (last visited Jan. 2, 2019).

[38] NFL investigation of balls in AFC title game led by Pash, Wells, NFL (Jan. 23, 2015, 1:56 PM), http://www.nfl.com/news/story/0ap3000000462476/article/nfl-investigation-of-balls-in-afc-title-game-led-by-pash-wells (hereinafter “NFL investigation of balls”).

[39] Id.

[41]NFL investigation of balls supra note 38; Ben Protess, Report’s Author Is Former Football Player Known Best as Trial Lawyer, NY Times (May 6, 2015), https://www.nytimes.com/2015/05/07/ sports/football/ted-wells-reports-author-is-former-football-player-known-best-as-trial-lawyer.html.

[42] Paul, Weiss, Rifkind, Wharton & Garrison LLP, Investigative Report Concerning Footballs Used During The Afc Championship Game On January 18, 2015 (2015), https://www.documentcloud.org/documents/2073728-ted-wells-report-deflategate.html.

[43] Troy Vincent’s Letter to Tom Brady, ESPN (May 12, 2015),  http://www.espn.com/nfl/story/_/id/ 12873455/troy–vincent–letter–tom–brady.

[44] NFL releases statement on Patriots’ violations, NFL (May 11, 2015, 8:48 PM), http://www.nfl.com/news/story/0ap3000000492190/article/nfl-releases-statement-on-patriots-violations.

[45] NFL Mgmt. Council v. NFL Players Ass’n (Brady I), 125 F.Supp.3d 449 at 457 (S.D.N.Y. 2015).

[46] The arbitral process is only vaguely defined in the NFL’s CBA. See NFL Collective Bargaining Agreement, supra note 22 at 187. Essentially, the Commissioner issues a punishment, then the player may appeal by writing to the Commissioner. After receiving the writing, the Commissioner has the discretion to designate himself as the arbitrator, or alternatively, appoint a hearing officer.

[47] Id. at 204–05.

[48] Ray Rice was suspended for an incident involving domestic violence in 2014. Video of the assault garnered widespread national media attention. See Ray Rice Suspended 2 Games, ESPN (July 24, 2014), http://www.espn.com/nfl/story/_/id/11257692/ray-rice-baltimore-ravens-suspended-2-games.

[49] In 2012 the NFL concluded an investigation into the New Orleans Saints, finding the Saints’ organization had designed a system of financial incentives for hard hits and inflicting injuries on opposing players. See Saints Bounty Scandal, ESPN: NFL Topics, http://www.espn.com/nfl/topics/_/page/new-orleans-saints-bounty-scandal (last updated Feb. 26, 2013).

[50]Brady I, 125 F.Supp.3d 449, 458 (S.D.N.Y. 2015).

[51] Id. at 457–58.

[52] Id. at 458.

[53] Id. at 459.

[54] Id. at 458.

[55] Id. at 459–60.

[56] Id. at 460.

[57] Id. at 460–61.

[58] Id. at 461.

[59] Id. at 474.

[60] Id. at 462–63.

[61] Id. at 473–74.

[62] Id. at 462.

[63] Id.

[64] See Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 (1974); Steelworkers v. Enterprise Car, 363 U.S. 593, 596–97 (1960); 187 Concourse Assocs. v. Fishman, 399 F.3d 524, 527 (2d Cir. 2005).

[65] Brady I, 125 F.Supp.3d at 459–60.

[66] Id. at 470.

[67] Id. at 472–73.

[68] Id.

[69] Id. at 471–72.

[70] Id.

[71] Id. at 472.

[72] See id.

[73] Id.

[74] Id. at 473.

[75] Id. at 472.

[76] Compare Brady I, 125 F.Supp.3d at 459 (Goodell cites Art. 46 in asserting “the collective bargaining agreement provides for tightly circumscribed discovery” to support denial of motion to compel production of documents), with Brady I, 125 F.Supp.3d at 459–60 (admitting that Article 46 does not provide guidance for basic discovery such as witness testimony thus the arbitrator retains discretion to admit or deny motions sua sponte).

[77] Id. at 473.

[78] Id. at 472–73.

[79] NFL Mgmt. Council v. NFL Players Ass’n (Brady II), 820 F.3d 527, 531–32 (2nd Cir. 2016).

[80] Id. at 548–49.

[81] Id. at 536.

[82] Id.

[83] See supra footnotes 1–29 and accompanying text.

[84] See supra footnotes 23–29 and accompanying text.

[85] Brady II, 820 F.3d 527 at 539.

[86] Id. at 545–46.

[87] See id. at 546–47.

[88]  See 9 U.S.C. § 10(a)(3) (2012).

[89] Brady II, 820 F.3d at 546, 548.

[90] Id. at 546–47.

[91] Alexander v. Gardner-Denver Co., 415 U.S. 36, 53 (1974); 187 Concourse Assocs. v. Fishman, 399 F.3d 524, 527 (2d Cir. 2005); see also United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960).

[92] Brady II, 820 F.3d at 546.

[93] NFL Collective Bargaining Agreement, supra note 22 at 113, 205.

[94] Brady II, 820 F.3d at 546–47.

[95] NFL Players Ass'n v. NFL (Zeke I), 270 F. Supp. 3d 939, 944 (E.D. Tex. Sep. 8, 2017).

[96] Id.

[97] Id.

[98] Id.

[99] Id.

[100] Id. at 945.

[101] Id.

[102] Id.

[103] Id.

[104] Id. at 939.

[105] Zeke I, 270 F. Supp. 3d at 945; NFL Mgmt. Council v. NFL Players Ass’n (Zeke IV), No. 17-cv-06761-KPF, 2017 U.S. Dist. LEXIS 171995 at *2 (S.D.N.Y Oct. 17, 2017).

[106] Zeke I, 270 F. Supp. 3d at 951.

[107] Id.

[108] Id.

[109] Id. at 951–54.

[110] Id. at 951–53.

[111] Id. at 952–53.

[112] Id. at 953.

[113] Id. at 953.

[114] See id. at 953–54.

[115] Id. at 954.

[116] Id. at 955.

[117] NFL Players Ass’n v. NFL (Zeke III), 874 F.3d 222, 231 (5th Cir. 2017).

[118] Id. at 229.

[119] Id. at 234.

[120] Zeke IV, 2017 U.S. Dist. LEXIS 171995, at *6.

[121] Id. at *5–6.

[122] NFL Mgmt. Council v. NFL Players Ass’n (Zeke V), 2017 U.S. Dist. LEXIS 179714, at *1 (S.D.N.Y. Oct. 30, 2017).

[123] Id. at *3.

[124] Id. at *22–25.

[125] Id.

[126] Id. at *24.

[127] Id. at *20.

[128] Around the NFL Staff, Ezekiel Elliott Suspension Back; Court Denies Injunction, NFL (Nov. 9, 2017, 3:41 PM), http://www.nfl.com/news/story/0ap3000000874433/article/ezekiel-elliott-suspension-back-court-denies-injunction.

[129] State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 803 (Mo. 2015).

[130] Id. at 803.

[131] Id.

[132] NFLPA Statement on NFL Disciplinary Process, NFLPA https://www.nflpa.com/news/ezekiel-elliott-disciplinary-process, (last visited Jan 2, 2019).

Graduate Students or University Employees? The NLRB Got It Wrong; It’s Time for Congress to get it Right

Graduate Students or University Employees? The NLRB Got It Wrong; It’s Time for Congress to get it Right

Austin Anderson[1]

Introduction

Graduate students across the country are often required to complete a set amount of hours working as a graduate assistant in order to earn their degree. These graduate assistant hours are typically earned by working as either a research assistant or a teaching assistant, depending on which type of program the student is enrolled in.[2] The relationship between the students and their institutions presents some interesting legal questions, particularly for teaching assistants. The most intriguing question that arises is whether these students should be considered employees as defined under the National Labor and Relations Act. The distinction is an important one; classifying graduate students as employees would grant them rights and privileges that other types of employees are entitled to, most notably the right to enter collective bargaining agreements to negotiate for less required hours and university health insurance.[3]

The National Labor and Relations Act (NLRA) governs this type of issue, and the National Labor Relations Board (NLRB) hears and settles claims brought under the Act working as a quasi-judicial entity.[4] The NLRB was first presented with the question of university-employed graduate students in 1972,[5] and the issue has never fully been resolved. In 2004, the Board seemed to end the dispute once and for all when it ruled affirmatively that students were not employees under the NLRA.[6] However, the issue was not settled for long; the Board overruled itself in August 2016, holding that “student assistants who have a common-law employment relationship with their university are statutory employees under the [National Labor Relations] Act.”[7] This ruling only applies to private institutions, as state statutes govern public university employment,[8] but the implications are still far-reaching.

Unfortunately, the Columbia University ruling was just the latest example of inconsistency in NLRB decisions.[9] Perhaps the best explanation for why the Board is consistently overruling itself is the political nature of the board itself; board members are appointed by the President of the United States, and every member has a fixed term of five years.[10] Presidents appoint candidates who will bring a conservative or liberal approach to the Board, depending on what views the President at the time of appointment holds. A conservative board would likely have no problem overruling a liberal board, and vice versa. This, coupled with the fact that NLRB decisions are only somewhat binding precedent even if affirmed by a federal circuit court,[11] means that there is no clear indication that the court will stop overruling itself at any time in the near future.

The NLRB is simply not fit to create a final, lasting precedent from a procedural standpoint.[12] Therefore, the only way this issue can truly be resolved is for Congress to amend the National Labor Relations Act and end the dispute once and for all. The original Act was passed in 1935,[13] and has not been significantly altered by Congress since the passing of the Landrum-Griffin Act in 1959.[14] Almost all areas of the law have changed drastically in the last sixty years, and labor law is no different. The unique relationship between universities and their graduate students as they operate today was very likely not foreseen or contemplated when the NLRA was drafted or last amended.

Aside from being the only legitimate avenue for endorsing a specific reading of the National Labor Relations Act, Congress is the entity best equipped to decide such a complex and far-reaching issue. In 2015, there were over 130,000 students employed by their universities in a teaching assistant role.[15] Despite the competency of NLRB members, this issue is simply too large to be decided by a panel of five appointed officials. Students and universities both make compelling arguments advancing their positions. Students point to the fact that teaching assistants often fill roles that would otherwise have to be filled by adjunct faculty which are considered employees.[16] Universities, on the other hand, feel that classifying graduate students as employees would hamper their freedom to create a rigorous and challenging curriculum.[17]

This Note seeks to further explain the complex issue of graduate students as university employees and advocate Congressional action. Part One briefly explains the procedural structure of the National Labor Relations Board and how it operates. Part Two summarizes the history of Board rulings in regard to graduate students as employees, including the two most recent rulings on the matter, Brown University and Columbia University. It further identifies how the two opinions differ beyond their ultimate result. Part Three advocates for Congress to amend the National Labor Relations Act by adding students to the list of groups which are not covered by the Act, effectively denying them the classification of employee. In making this argument, the Note will point out the flaws of the Columbia University decision, discuss the practical effects of the decision, and explain why the rights of the universities must prevail from a policy standpoint.

I. The National Labor Relations Act Overview

A. Passing of the Act and Mechanics of the Board

In passing the National Labor Relations Act in 1935, Congress made it a point to explain why it believed the legislation was needed.[18] Upon reading the “[D]eclaration of [P]olicy” section, it becomes clear that the key objective of the Act was to help make up for the inequality of bargaining power between employers and employees.[19] Enacted under the authority of the Commerce Clause,[20] the drafters seemed to believe that the right to collective bargaining was the most powerful tool employees could harness against their employers in their plight for competitive wages and improved working conditions.[21]

If protected by the NLRA, the students’ argument is a strong one. There is a clear lack of bargaining power, and the remedy they seek is expressly endorsed by the Act.[22] The key question at issue, however, is whether the students are “employees” under the statute.[23] The Act has some peculiar jurisdictional limitations in defining what types of employees and employers are covered. Generally, almost all private sector employers are regulated by the Act, so long as their activity in interstate commerce exceeds a minimal level.[24] Notably, all forms of government employment are excluded from NLRA jurisdiction.[25] This includes federal, state, and local governments, and it extends to their entities such as libraries and parks, wholly-owned government corporations, and most relevant for our purposes, public schools.[26] Governmental bodies aren’t the only types of employers excluded from the Act, however; agricultural-based employers, as well as employees subject to the Railway Labor Act, also do not fall within its jurisdiction. [27]

If a labor issue arises out of a provision of the Act and the employer is not excluded from the jurisdiction of the Act, then disputes are settled by the National Labor Relations Board, in a sense acting as the judicial component of the agency.[28] The Board is comprised of five members, who are appointed by the President with advice and consent of the United States Senate.[29] Each board member serves a regular five-year term, unless appointed mid-term to fill a vacancy.[30] Disputes are generally heard by three-member panels unless the case at hand is significant enough to warrant consideration of all five board members.[31] This practice was called into question in New Process Steel, L.P. v. NLRB, where the Supreme Court held hundreds of NLRB rulings invalid, reasoning that at least three members of the Board must sit on the deciding panel for a decision to be legally enforceable.[32]

It is unsurprising that NLRB appointments today are highly politicized decisions.[33] What is surprising, however, is that the partisan nature of appointments is a relatively new phenomenon. Commentators have pointed to the Eisenhower administration as the first to appoint a NLRB member whose background clearly indicated a possible bias towards the president’s personal viewpoints.[34] The trend continued until eventually Presidents Reagan and Clinton became the first presidents to appoint nominees who possessed clear Republican and Democratic partisanship, respectively.[35]

Today, nominating a partisan NLRB member is business as usual;[36] but what are the impacts of partisan nominations? These partisan nominations have shaped the determination of “sharply contested issues of law and policy” before the Board.[37]  There is substantial anecdotal evidence of the partisan nature of the NLRB, and the few scholarly studies on the issue generally find that “the party of the appointing president influences the NLRB’s output.”[38] Scholars disagree to what extent background affects member ideology,[39] but most would likely agree that to some extent, “a presidential administration can make or change labor policy without legislative action through appointments to the NLRB.”[40] Given the importance of labor issues covered under the NLRA, and the predictability of how members will vote,[41] appointing NLRB members is one of the most quietly influential appointment decisions a sitting president will make.

Perhaps the best restraint on the President’s authority is not a law, or even the Senate confirmation requirement, but the custom that of the five appointed Board members no more than three should come from the President’s political party.[42] Still, even with this custom in place, it is plainly obvious that a “change in presidential administration from Republican to Democrat gives rise to a pro-labor shift in NLRB performance, and a change from Democrat to Republican produces a pro-business shift.”[43]

B. The Non-Binding Nature of Decisions Demands that Congress Must Act for Meaningful NLRA Clarification

Though the NLRB assuredly acts as a judicial body in the way that it adjudicates claims and disputes, its decisions are more accurately described as an agency order.[44] The Board may issue a ruling, but the order is not self-enforcing.[45] If a charged party refuses to comply, the Board must seek enforcement from the appropriate appellate court.[46] Likewise, if a party wishes to dispute an order, it can go to the courts to have the Board decision remanded or voided.[47] Even if a federal appellate court upholds or strikes down a decision of the Board, the decision is only binding on the case at issue, and it does not set precedent for future Board rulings.[48]

The practical effect of all of this is that newly appointed Boards are free to overrule previous rulings in adjudicating new disputes, and they do so often.[49] Given that Boards’ ideologies differ greatly depending on the president which appointed the members,[50] and the fact that Boards are not constrained by stare decisis when deciding their cases,[51] it is unsurprising that a new Board would be all too eager to overturn previous Board rulings the first time they have the opportunity to do so. The process of overturning prior Board rulings is problematic, but constitutional nonetheless.[52] In 1975, the Supreme Court of the United States not only condoned this sort of flip-flopping, but encouraged it by holding that “[t]he responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board,”[53] and that past decisions can be reconsidered to reflect that.[54]

The lack of uniformity and predictability is a major concern for practicing attorneys and parties alike. A former Board Member, frustrated with the current system, notes “[a]s a matter of policy, these flip-flops reduce public and judicial confidence in the Board. In practice, this oscillation also reduces both management and labor's reliance on Board law because neither side is sure what the future will hold.”[55]

Because of its partisan nature and the lack of binding precedent, the NLRB is simply not equipped to create a true resolution of the classification of a graduate student under the Act. Any ruling on the classification of graduate students as an employee under the Act can and likely will be overturned as soon as a new Board is appointed.[56] Further, both academic institutions and graduate students will be hesitant to act, even if a ruling is made in their favor, knowing that the current status quo can be usurped at any time.[57] The issue of graduate students under the NLRA must be addressed by Congress to finally put the debate to rest.

Though ineffective at creating lasting policy because of the Board’s nonobservance of stare decisis,[58] the NLRB is not useless by any stretch. In fact, it may have been a goal of Congress to create the Board in such a way that it could not create rigid, binding precedent.[59] Board members generally have valuable experience or expertise in labor or employment law,[60] and their insights and reasoning in solving disputes should be taken seriously. Though only Congress can permanently answer the question of how to treat student-employees, in making its decision Congress would be wise to consider how the Board has handled the issue for the last 45 years.[61] The following section will examine a timeline of such cases, and demonstrate how both a Republican-appointed Board and a Democrat-appointed Board acted when most recently presented with the issue.[62]

II. Where the Issue Arises and How the NLRB Has Handled It 

A. Defining “Employee” Under Section 2(3) and Interpreting the Definition

The heart of the issue in all of the student-employee labor disputes is whether or not the students are considered employees under the NLRA.[63] The Act provides a definition of “employee,” which is the source of the litigation. In pertinent part, the Act defines employee in the following manner:

The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise … but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act … or by any other person who is not an employer as herein defined.[64]

Generally, interpretation of this definition comes down to competing theories of statutory construction; specifically, the competing theories of textualism and other intentionalist theories.[65] When used by judicial bodies, textualism—which focuses on the text of the statute at issue—is usually employed by conservative judges, whereas intentionalist theories—which focus on Congressional intent or the purpose of the statute—are often employed by liberal judges.[66] The Board, however, is not a true judicial body but rather a branch of an administrative agency.[67] Because of its unique nature, some interesting questions arise; most notably, what interpretation the Board should apply, or whether or not it should even apply a statutory interpretation theory at all.[68]

A textualist approach makes the analysis somewhat easy in regarding the determination of employment status under the NLRA. Under the “expressio unius” statutory interpretation maxim, which provides that “[w]hen a provision sets forth a general rule followed by specific exceptions to that rule, one must assume–absent other evidence–that no further exceptions are intended,”[69] a strong argument could be made that students are employees because they are not listed alongside the other exceptions.[70] The expressio unius maxim is a subset of the larger interpretation doctrine of textualism.[71]

Intentionalist theories, on the other hand, involve a somewhat murkier analysis, though they could arguably lead to more ‘fair’ results.[72] Intentionalism itself has multiple sub-categories; some judges ask themselves what the enacting legislature would have done with the issue at hand, while others query what interpretation would best serve the true purpose of the law.[73] These methods are called intentionalism and purposivism, respectively.[74] To employ either of these methods requires a judge to make his or her subjective decision as to what Congress would have wanted or what the purpose of the law was.[75] To put one’s self in the shoes of a 1935 legislator is a difficult thought experiment which could produce any number of results.

Both textualist and intentionalist approaches are widely used by judicial bodies,[76] but the overarching question remains: should the NLRB act as a judicial body, or the administrative agency that it truly is? Unlike Courts, administrative agencies are well equipped to legitimately make policy choices.[77] Courts are generally tasked with merely interpreting a statute before them, whereas an administrative agency’s “are expected to make policy choices much more so than the courts, a role that has been upheld by the Supreme Court.”[78] Though the agency’s role of promoting policy is often relegated to interpreting its own authority,[79] it can abandon this role in the interest of promoting policy related to the statute it administers.[80] This practice may cause some to raise an eyebrow, but it has been condoned by the Supreme Court so long as the policy the agency is promoting is reasonable.[81]

The differences in how Courts and the NLRB operate tends to give credence to the idea that an intentionalist approach, specifically purposivism, is better suited to resolve disputes at issue. Accepting that an administrative agency may legitimately promote its policy,[82] textualism seems like an odd vehicle to fulfill that duty. Policy, unlike a statute or the Constitution, is ever-changing, and continually reading statutes under a textualist lens fails to give agencies the opportunity to reflect those changes.[83] Additionally, ruling that an argument fundamentally promotes an agency’s policy, rather than merely finding an argument is valid under a textualist reading of the statue, seems much more effective at establishing and continually endorsing said policy.

B. A Brief History of Pre-Brown Graduate Assistant Decisions

The issue of teaching assistants and other graduate students is not a new one; in the early 1970’s, the Board ruled on two cases that set an early precedent on the matter. The first, Adelphi University, held that graduate students were not employees of their university; therefore they were not fit to join the rest of the faculty when collectively bargaining.[84] The Board placed a great deal of emphasis on the differences between the regular faculty and the graduate assistants. The functions the students performed, they reasoned, were primarily academic with only some faculty-related tasks.[85] Additionally, because the student’s employment relationship could not exist without the established academic relationship, the court held that the two groups were too distinct to be included in the bargaining unit.[86]

Two years later, the Board solidified its position in Adelphi University and expanded upon it. In The Leland Stanford Junior University case, the Board held explicitly that because graduate assistants were “primarily” students, they were not statutory employees under the NLRA.[87] The Board also considered the nature of their employment standing alone and how it compared to a traditional University employee. Unlike non-student employees, the University had little control over the students’ research projects and students were not paid in accordance with the value of their work.[88] The Board found that the true employment relationship was “a situation of students within certain academic guidelines having chosen particular projects on which to spend the necessary time, as determined by the project's needs.”[89]

The Leland and Adelphi decisions lasted for over 25 years before being overturned by New York University in 2000.[90] The New York University Board did not act completely on its own. Instead, the reasoning for overturning Leland was borrowed from another decision, Boston Medical Center, which created a new standard of determining employment on the basis of the common law master-servant doctrine.[91] Applying the standard, the Board determined that the students were statutory employees under Section 2(3);[92] this was the first time students ever received such classification.[93] In determining whether or not a master-servant relationship existed, the Board reasoned that it exists when “a servant performs services for another, under the other’s control or right of control, and in return for payment.”[94] Aside from examining the common law employment relationships, the Board also took a textualist approach, noting that Congress had made specific exceptions to the general rule and student-employees were not one of them.[95]

C. Brown Versus Columbia – Under the Microscope

The two most recent disputes on the matter illustrate where the Board stands now, and what reasoning it used to arrive there. The cases are factually indistinguishable for all relevant purposes, and the issue is identical.[96] So how did the two cases, decided merely 12 years apart, arrive at opposite conclusions? This section attempts to answer that question by identifying the underlying causes.

i. Brown Analysis

Brown overturned NYU and held that graduate students were not employees as defined by the NLRA.[97] The ruling in Brown can be condensed down to three major conclusions, the first of which is that the relationship is primarily and unequivocally an academic one.[98] The justification for this claim is similar to that of pre-NYU cases; namely, that the students’ employment relationship exists only to the extent that it is part of the academic relationship.[99] Still, the Board realized that under a textualist reading it doesn’t matter if the relationship was primarily an academic one, so long as an employment relationship existed.[100] To pre-emptively combat such a counter-argument, the Board unabashedly explained that their “interpretation of Section 2(3) followed the fundamental rule that ‘a reviewing court should not confine itself to examining a particular statutory provision in isolation.’”[101] The Board then concluded this argument by deciding under a purposivism approach that an employee was covered under the Act only if the relationship was a “fundamentally economic relationship.”[102]

A second conclusion the Board made is that allowing students to collectively bargain based on their employment relationship would undoubtedly cause adverse effects to their academic relationship.[103] More specifically, by limiting an institution’s right to require some number of hours spent in a graduate assistant role, students would in effect be hampering that institution’s ability to set their own curriculum.[104] The Board even went so far as to say that “[i]mposing collective bargaining would have a deleterious impact on overall educational decisions by the Brown faculty and administration.”[105] Here, one can see the Board fully embracing its role as policymaker,[106] by focusing on what policy it wishes to promote and the practical effects of a ruling, rather than merely interpreting the statute it administers. The Board in this instance clearly saw academic sovereignty as a legitimate policy concern.

The final argument that the Board endorsed in Brown is quite distinct from the previous two, and it was not contemplated by the Board in any of the pre-NYU decisions. The thrust of the argument is that payments made to teaching assistants shouldn’t be considered compensation, rather that they were merely part of a student’s financial aid package.[107] This claim demands attention. The Board considered evidence presented by the University; incoming graduate students often received letters which stated if they “maintain satisfactory progress toward the Ph.D., [they] will continue to receive some form of financial aid in [their] second through fourth years of graduate study at Brown, most probably as a teaching assistant or research assistant.”[108] Additionally, the Board pointed out that funding for the programs was provided by grants[109] and “the amount of stipend received is the same regardless of the number of hours spent performing services. The awards do not include any benefits, such as vacation and sick leave, retirement, or health insurance.”[110] All of this evidence would lead one to believe that the relationship between the University and the students were not so similar to a common-law employment relationship under a New York University analysis.[111]

ii. Columbia Analysis

Brown lasted for 12 years, until being overturned by Columbia.[112] The Columbia Board was very critical of the Brown decision, and a considerable amount of the opinion is refuting arguments the Board had accepted in Brown.[113] The Board specifically took exception to the fact that Brown’s reasoning seemingly ignored a textualist approach altogether.[114] Though Columbia did not advocate a strictly textualist approach, the Board believed that the “fundamental error of the Brown University Board was to frame the issue of statutory coverage not in terms of the existence of an employment relationship, but rather on whether some other relationship between the employee and the employer is the primary one.”[115] That standard was “neither derived from the statutory text of Section 2(3) nor from the fundamental policy of the Act.”[116]

Columbia’s disapproval of Brown did not stop with statutory interpretation theories. When the Columbia Board embraced its role as policymaker,[117] it questioned the legitimacy of Brown’s conclusions. Claiming that the reasoning relied on by the Brown Board was “almost entirely theoretical,” they concluded that “[t]he Brown University Board failed to demonstrate that collective bargaining between a university and its employed graduate students cannot coexist successfully with student-teacher relationships, with the educational process, and with the traditional goals of higher education.”[118] Instead of speculating on what might happen if students were ruled to be employees, the Board examined public universities where students were already allowed to unionize and concluded that collective bargaining had a positive effect on the student-employees, without nearly as many detriments as Brown predicted.[119]

Additionally, the Columbia Board rejected Brown’s attempt to balance the independence of Universities and the potential rights of student-employees. In the Board’s opinion, the scope of policy it should be concerned with begins and ends with the employment aspect, and the NLRB should not be concerned with protecting an educational institution’s interest.[120] Unlike the Brown decision, the Columbia Board believed that it is “entirely possible for [the] different roles [of student and employer] to coexist – and for genuine academic freedom to be preserved.”[121] The only real restraint the Board saw on their ability to disregard the academic element of the relationship was potential infringements on academic freedom which implicated First Amendment protections.[122] They did not view this as a legitimate concern, as they believed that the First Amendment was only implicated when there are government efforts “to control or direct the content of the speech engaged in by the university or those affiliated with it.”[123]

iii. So What Really Changed?

Simply reflecting on the brief analyses of the cases, it is apparent that the two Boards involved in Columbia and Brown did not agree on much. However, the more interesting question is: what are the underlying reasons for such vehement disagreement? As previously discussed, the NLRB is a political entity.[124] The two Boards, ruling in 2004 and 2016, were a product of Republican and Democratic presidential appointments, respectively. Given that Republican-appointed Boards generally rule in favor of pro-management arguments and Democrat-appointed Boards generally rule in favor of pro-union or pro-employee arguments,[125] it makes sense that the Republican (Bush) appointees found for the Universities, whereas the Democrat (Obama) appointees found for the student-employees.

The methods the two Boards took to achieve their preferred outcome are fascinating. It is widely accepted that conservative jurists most commonly adopt a statutory interpretation theory which falls under the umbrella of textualism.[126] Conversely, liberal jurists often adopt and apply one of the intentionalist theories.[127] The irony is that to achieve a favorable result in the cases, the conservative appointees essentially ignored the text of the NLRA and adopted a purposivism approach, and twelve years later liberal justices scrutinized their interpretation and founded their decision in a textualist argument.[128] One familiar with judicial norms may ask themselves just what universe they have stumbled into; the answer is that they are now in the world of administrative agencies, where agents openly promote the policies they agree with, but do it all under the ruse of a legitimate judicial decision.[129]

III. Congress Should Act in Favor of the Universities

A. Where Columbia Went Wrong

The Columbia ruling falls short in many aspects. The textualist approach the Board advocated for and somewhat applied is simply not fit for an administrative agency. It has been stated ad nauseam at this point, but the primary goal of such agencies is to promote policy it wishes to. In criticizing Brown for not applying a textualist approach,[130] the Columbia Board misunderstands its purpose. Congress created the Board so that labor disputes would not be decided by a true judiciary; “[i]f Congress intended the administrative agency to employ textualism or intentionalism, it would have given the primary interpretive role to courts, who are experts in those methods of interpretation. The fact that Congress gives an agency policymaking power suggests Congress desires something other than textualism or intentionalism.”[131]

The Board in Columbia also overstates the intended scope of the National Labor Relations Act, or the NLRA. After setting aside the façade of a legitimate statutory interpretation, the Board shows a clear misunderstanding of what the purpose of the act was. There is a clear underlying assumption in Columbia’s decision that if there is an employment relationship present, then the Act was enacted to cover it.[132] However, the already provided statutory exceptions show that the Act was not intended to cover all employment relationships. The statutorily exempt employees include “any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor.”[133]

This is a peculiar, seemingly random group of categories of employees. Surely an individual employed by their parent or spouse has an “employment relationship,” as well as supervisors. Therefore, under Columbia, had these groups not been specifically exempted, they would have been ruled employees, because there was some evidence of an employment relationship.[134] Why, then, did Congress list them as exceptions? Perhaps it is because unlike the Board’s narrow-minded approach, Congress may have understood that employment relationships do not exist in a vacuum, and other public policy concerns should be taken into account when deciding an issue. The Board in Columbia failed to acknowledge that Congress itself implied that the existence of a non-economic relationship could overpower the economic component of an employment relationship and remove it from NLRA coverage.

From a pure policy perspective, the benefits of classifying students as employees simply do not outweigh the detriments. Despite what the Columbia Board may have concluded,[135] the two “spheres” of a student-employee’s relationship with its institution are inseparable. Changes to one will affect the other. In fact, the lack of one may completely eliminates the possibility of the other existing. Though NLRB members are generally former lawyers well versed in the intricacies of labor law, they do not fully understand the complex student-employee relationship. Professors and other university faculty members, on the other hand, are in a much better position to make such a determination. Many faculty, who were likely graduate students and teaching assistants themselves at one point, have “strongly opposed graduate student organization.”[136]

Those in support of the Columbia ruling will likely point to the fact that some recent studies have shown that where student unions have been created, there has not been any negative effect on the student-teacher relationship.[137] However, this is an area of very little research with an extremely limited sample size that is possibly not representative of all universities, and there have been no studies to confirm nor deny these findings.[138] Even accepting the findings at face value, they do not support the claim that unionization does not have adverse effects on the academic relationship between the institutions and their student employees. Further, the study completely failed to examine how the institutions and full-time faculty felt about the change.[139] The study focuses on the relationship between student employees and full time faculty, when the relationship most affected by unionization is likely the one between the students and the institution itself. [140]This leads into the larger overarching issue of institutional academic freedom, which is discussed in the following section.

B. Institutional Academic Freedom

Institutional academic freedom is the most compelling reason that Congress should choose to add student-employees to the Section 2(3) exceptions. Though a difficult term to define, the essence of the doctrine is that universities should be protected to act independently with as little government interference as possible. The underlying premise is that freedom within an academic setting provides an immeasurable value to society as a whole.[141] Universities themselves started to understand the importance of academic freedom as early as the mid-1800’s.[142] Since then, academic freedom has consistently been viewed as a “special concern of the First Amendment.”[143] The Supreme Court of the United States has explained why they take the doctrine so seriously:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.[144]

There are four essential freedoms that, when exercised freely, grant a university true academic freedom.[145] Those four freedoms are the freedom to choose (1) who may teach, (2) what may be taught, (3) how it shall be taught, and (4) who may be admitted to study.[146] Perhaps obviously, the most relevant in context of graduate student unionization is the freedom to choose how material should be taught. Schools have argued that if students could collectively bargain, then they could bargain for a lesser course load or lower degree requirements.[147]

The mechanics of determining whether a specific academic action is constitutionally protected are tricky. The term itself seems to take on different meanings depending on the jurisdiction. Academic freedom could mean the right of the professor to act independently from a university, or the freedom of a university to act autonomously without burdensome state interference.[148] The latter of these two situations is commonly referred to as Institutional Autonomy.[149] Even if a court can clearly define what type of role the doctrine is being used in, the analysis changes depending on whether the institution is public or private.[150] For the purposes of this Note it is not necessary to dive into what may or may not be constitutionally protected under the First Amendment. However, from a policy perspective, Congress should take note of the extreme importance that our judicial system has placed on academic freedom.

Thankfully, Congress is not oblivious to the doctrine. In passing legislation designed to drive down the cost of textbooks, it mentioned academic freedom specifically in the “purpose and intent” clause, writing:

It is the intent of this section to encourage ... faculty, students, administrators, institutions of higher education, bookstores. distributors, and publishers, to work together to identify ways to decrease the cost of college textbooks and supplemental materials for students while supporting the academic freedom of faculty members to select high quality course materials for students.[151]

It is worth noting that the phrase “academic freedom” is not defined anywhere in the United States Code. Does this mean that Congress adopted the judicial definition in drafting a federal statute? One can only speculate, but the phrase does seem to be a clear nod to the doctrine as it has been applied in courts. This would ideally mean that Congress holds the idea in the same high regard as the judicial system and will make a pointed effort to protect any potential infringements on academic freedom. From a policy perspective, this would be a welcome approach.

Private universities, out of the reach of state action, have survived for hundreds of years in part because they are allowed a great deal of discretion in deciding what policies and methods help them to maintain their integrity. An institution should produce graduates capable of beneficial, successful, careers if it wishes to survive academic Darwinism. Perhaps a university believes that to be qualified to earn a PhD, a student must fully demonstrate that he or she knows the subject matter by teaching it to undergraduates. Perhaps a research-based university wishes to stay at the forefront of innovation and does not think a degree should be rewarded until the student produces valuable information. How a university wishes to prepare its graduates for the real world is a decision that they should be free to make. Congress should realize that allowing nationwide unionization could create a “race to the bottom,” where institutions lower their requirements and standards to attract candidates looking for an easier workload. This of course, would have a detrimental effect on the up-and-coming workforce as a whole.

IV. Conclusion

It is time for Congress to step up to the plate and answer the question of whether students are employees under the NLRA. The issue is important enough and affects enough students nationwide to warrant Congressional action. The Board, by no fault of its own, simply cannot create lasting policy needed to ensure stability moving forward. An administrative Board, admittedly concerned only with the economic aspect of a much more complex relationship, has failed to consider the extent to which their decision may harm the academic aspect. Congress, conversely, is in a more objective position to determine to what extent one aspect of a relationship can intrude upon another.

In acting, Congress should add student-employees to the statutory exceptions listed in Section 2(3). At the time the Act was passed, no legislator could have imagined such a strange quasi-employment relationship would ever exist in a University setting. The exceptions listed in the statute are excellent clues that Congress was aware that some relationships were more complex or unique than others, and those relationships which did not fit the traditional employer-employee model were exempt from NLRA coverage. Congress should follow this logic, and stop the NLRA from infringing on academic freedom. 

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[1] University of Kentucky College of Law, J.D. expected May 2018.

[2] Graduate Student Assistantship, Stan. U. (Sept. 4, 2015), https://adminguide.stanford.edu/chapter-10/subchapter-2/policy-10-2-1.

[3] See generally Columbia University, 364 N.L.R.B. No. 90 (2016) (explaining the historical debate as to whether or not graduate students should qualify as employees under the Act); National Labor Relations Act, 29 U.S.C. § 157 (2012).

[4] National Labor Relations Act, 29 U.S.C. § 153 (2012); What We Do, National Labor Relations Board, https://www.nlrb.gov/what-we-do (last visited March 24, 2018).

[5] See generally Adelphi University, 195 N.L.R.B. 639 (1972) (ruling that graduate assistants should be excluded from a bargaining unit of university faculty members because they did not share a community interest with the faculty).

[6] Brown University, 342 N.L.R.B. 483, 493 (2004).

[7] Columbia University, 364 N.L.R.B. No. 90, at 2 (2016).

[8] Id. at 2, 9.

[9] See discussion infra Part II.B.

[10] National Labor Relations Act, 29 U.S.C. § 153(a) (2012).

[11] See Enforce Orders, Nat’l Lab. Rel. Board, https://www.nlrb.gov/what-we-do/enforce-orders (last visited March 26, 2018) (“In reviewing cases, the Circuit Courts evaluate the factual and legal basis for the Board’s Order and decide, after briefing or oral argument, whether to enter a judicial decree commanding obedience to the Order.”).

[12] See id.

[13] National Labor Relations Act, 29 U.S.C. § 151 (2012).

[14] See Wagner Act United States [1935], April 2018, Encyclopedia Britannica, https://www.britannica.com/topic/Wagner-Act.

[15] Occupational Employment and Wages, May 2016, Bureau of Lab. Stat., http://www.bls.gov/oes/current/oes251191.htm#nat (last visited March 26, 2018).

[16] See C.W. Post Center, 198 N.L.R.B. 453, at 454 (1972).

[17] Columbia University, 364 N.L.R.B. No. 90 at 7-9 (2016).

[18] See generally National Labor Relations Act, 29 U.S.C. § 151 (2012).

[19] Id. “The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.”

[20] See id. “[C]ertain practices by some labor organizations, their officers, and members have the intent or the necessary effect of burdening or obstructing commerce by preventing the free flow of goods in such commerce through strikes and other forms of industrial unrest or through concerted activities which impair the interest of the public in the free flow of such commerce.” See also Precision Castings Co. v. Boland, 13 F. Supp. 877, 882 (W.D.N.Y.) (“The enactment of the act by Congress was not beyond its powers under the commerce clause of the Constitution.”), aff'd, 85 F.2d 15 (2d Cir. 1936).

[21] National Labor Relations Act, 29 U.S.C. § 151 (2012).“It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”

[22] Id. “It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce . . . by encouraging the practice and procedure of collective bargaining. . . .”

[23] See discussion infra Part II.A.

[24] Jurisdictional Standards, Nat’l Lab. Rel. Board, https://www.nlrb.gov/rights-we-protect/jurisdictional-standards (last visited Mar. 31, 2018).

[25] Id. See also National Labor Relations Act, 29 U.S.C. § 152 (2012) (explaining that employers, as defined under the Act, will not include members of the various levels of government).

[26] See National Labor Relations Act, 29 U.S.C. § 152 (2012). See also Balmes v. Bd. of Educ. of Cleveland City Sch. Dist., 436 F. Supp. 129, 132 (N.D. Ohio 1977) (ruling that “plaintiff cannot pursue a cause of action [against school district] based upon the National Labor Relations Act, because a board of education is not an ‘employer’ as that term is defined in the Act . . . .”).

[27] 29 U.S.C. § 152 (2012).

[28] What We Do, National Labor Relations Board, https://www.nlrb.gov/what-we-do (last visited March 24, 2018).

[29] 29 U.S.C. § 153(a) (2012).

[30] Id.

[31]  NLRB Office of the Executive Secretary, Guide to Board Procedures 12 (April 2017), https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1727/Guide%20to%20Board%20Procedures%202017_0.pdf.

[32]  See generally New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010).

[33] Joan Flynn, A Quiet Revolution at the Labor Board: The Transformation of the NLRB, 1935-2000, 61 Ohio St. L.J. 1361, 1438 (2000) (noting that “[l]abor Board appointments are only ‘a small part of the grand political game’”).

[34] Id. at 1368–69.

[35] Id. at 1383–84, 1396­–98.

[36] Id. at 1394 (noting that “appointment of both management and union-side lawyers has now become routine”).

[37] See generally Ronald Turner, Ideological Voting on the National Labor Relations Board, 8 U. Pa. J. Lab. & Emp. L. 707, 761–62  (2006) (concluding that “ideology has mattered in a number of cases presenting controversial and sharply contested issues of law and policy”).

[38] Amy Semet, Political Decision-Making at the National Labor Relations Board: An Empirical Examination of the Board’s Unfair Labor Practice Decisions through the Clinton and Bush II Years, 37:2 Berkeley J. of Employment & Labor Law 223, 233 (2016).

[39] Compare Flynn, supra note 33, at 1403 (arguing “there seems little doubt that management and union representatives appointed to the Board are likely to be highly predisposed to the management or union-side point of view”), with Paul M. Secunda, Politics Not as Usual: Inherently Destructive Conduct, Institutional Collegiality, and the National Labor Relations Board, 32 Fla. St. U. L. Rev. 51, 103 (2004) (arguing that “the Members of the NLRB are able to separate their political and institutional roles and do what is best for national labor policy”).

[40] See e.g.,James A. Gross, Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947-1994 275 (1995); Amy Semet, Political Decision-Making at the National Labor Relations Board: An Empirical Examination of the Board’s Unfair Labor Practice Decisions through the Clinton and Bush II Years, 37:2 Berkeley J. of Employment & Labor Law 223, 233 (2016) (“there have only been a few scholarly studies of the NLRB’s adjudicatory decisions, with scholars generally finding that the party of the appointing president influences the NLRB’s output.”); NBC, Politics Stymie National Labor Relations Board, Sept. 2009, http://www.nbcnews.com/id/32715894/ns/politics-more_politics/t/politics-stymie-national-labor-relations-board/#.W3WlIrHMygQ (discussing the effect that the politicized nature of appointments has had on the appointment process).

[41] See Turner, supra note 35, at 711 (finding “ideology has been a persistent and, in many instances, a vote-predictive factor when the Board decides certain legal issues”).

[42] William B. Gould IV, Labored Relations: Law, Politics, and the NLRB–A Memoir 15 (2000).

[43] Terry M. Moe, Control and Feedback in Economic Regulation: The Case of the NLRB, 79 Am. Pol. Sci. Rev. 1094, 1102 (1985).

[44] 29 U.S.C. § 153(a) (2018) (“The National Labor Relations Board created by this subchapter prior to its amendment by the Labor Management Relations Act, 1947, is continued as an agency of the United States.”).

[45] NLRB v. Mayco Plastics, Inc., 472 F. Supp. 1161, 1163 (E.D. Mich. 1979) (“In support of its petition, the NLRB argues that . . . orders of the NLRB are not self-enforcing”).

[46] Id.

[47] Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679, 706 (1989); 29 U.S.C. § 160(f) (2018).

[48] See, e.g., NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787 (1990) (“[A] Board rule is entitled to deference even if it represents a departure from the Board's prior policy.”).

[49] Claire Tuck, Policy Formulation at the NLRB: A Viable Alternative to Notice and Comment Rulemaking, 27 Cardozo L. Rev. 1117, 1122–23 (2005) (observing that generally, “[f]our years after a change in presidential administration and a corresponding change in membership at the Board, the Board is again abruptly overruling past decisions”).

[50] See discussion supra Section I.A.

[51] See Ralph K. Winter, Jr., Judicial Review of Agency Decisions: The Labor Board and the Court, 1968 Sup. Ct. Rev. 53, 63 (noting that NLRB is not constrained by stare decisis like actual judicial courts).

[52] See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975).

[53] Id.

[54] See id. at 265–66.

[55] R. Alexander Acosta, Rebuilding the Board: An Argument for Structural Change, over Policy Prescriptions, at the NLRB, 5 FIU L. Rev. 347, 349 (2010).

[56] See Tuck, supra note 49, at 1122–23.

[57] See Acosta, supra note 55, at 349.

[58] See Daniel P. O'Gorman, Construing the National Labor Relations Act: The NLRB and Methods of Statutory Construction, 81 Temp. L. Rev. 177, 218 (2008) (arguing “the Board, as a policymaker and quasi legislature, should not feel bound by the doctrine of stare decisis to the same extent as a court and should be able to reverse precedent even when circumstances have not changed”).

[59] See Winter, supra note 51, at 58–59 (arguing that Congress wanted the NLRA administered by a body that was distinct from judicial courts and the doctrines they followed).

[60] See .The Board, Nat’l Lab. Rel. Board, https://www.nlrb.gov/who-we-are/board (last visited Aug. 16, 2018) (follow links to each Board member for information about experience and expertise).

[61] The first major ruling regarding graduate students as employees was handed down in 1972. See Adelphi University, 195 N.L.R.B. No. 107 (1972) (ruling that graduate assistants should be excluded from a bargaining unit of university faculty members because they did not share a community interest with the faculty).

[62] See discussion infra Part II C.

[63] See, e.g., Columbia U., 364 N.L.R.B. No. 90 (2016); Brown U., 342 N.L.R.B. No. 42 (2004).

[64] National Labor Relations Act of 1935, 29 U.S.C. § 152 (2016).

[65] O’Gorman, supra note 58, at 178–79.

[66] O’Gorman, supra note 58, at 178-79.

[67] See O’Gorman, supra note 58, at 182–84.

[68] See generally O’Gorman, supra note 58.

[69] Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 719 (1991).

[70] National Labor Relations Act of 1935, 29 U.S.C. § 152 (2016).

[71] See Adrian Vermeule, Interpretive Choice, 75 N.Y.U. L. Rev. 74, 85–86 (2000) (explaining that the expressio unius canon is a textual or “linguistic” canon).

[72] See generally Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution 85-101 (2005) (advocating intentionalist approach to statutory interpretation and asserting that intentionalist theories “help … statutes match their means to their overall public policy objectives, a match that helps translate the popular will into sound policy”).

[73] See O’Gorman, supra note 58, at 194.

[74] See O’Gorman, supra note 58, at 194.

[75] Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 348 (2005) (noting that “intentionalists try to identify and enforce the ‘subjective’ intent of the enacting legislature”).

[76] See O’Gorman, supra note 58, at 191 (finding that textualism and intentionalism are the two primary methods of judicial statutory construction).[77] See O’Gorman, supra note 58, at 197.

[78] O’Gorman, supra note 58, at 199.

[79] Nat'l Cable & Telecommun. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 983 (2005) (noting that “the agency remains the authoritative interpreter (within the limits of reason) of [its] statutes”).

[80] See O’Gorman, supra note 58, at 197–98.

[81] Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837, 842–45 (1984).

[82] Id. at 864–66 (affirming that administrative agencies are free to create and promote policy, and are not bound by traditional statutory interpretation doctrines).

[83] Id. at 838 (noting that the EPA permissibly changed interpretation of its own definitions because an administrative agency must reconsider its policy on a continuing basis).

[84] See Adelphi U., 195 N.L.R.B. No. 107 (1972).

[85] Id.

[86] Id.

[87] The Leland Stanford Junior U., 214 N.L.R.B. No. 82 (1974).

[88] Id.

[89] Id.

[90] See N.Y. Univ., 332 N.L.R.B. 1205, 1221 (2000); The Leland Stanford Junior U., 214 N.L.R.B., No. 82 (1974); Adelphi U., 195 N.L.R.B. No. 107 (1972).

[91] Boston Med. Ctr. Corp., 330 N.L.R.B. 152, 160 (1999).

[92] N.Y. Univ., 332 N.L.R.B. 1205, 1221 (2000).

[93] Columbia Univ., 364 N.L.R.B. No. 90, at 10 (Aug. 23, 2016) (stating “the Board first held that certain university graduate assistants were statutory employees in its 2000 decision in NYU”).

[94] N.Y. Univ., 332 N.L.R.B. 1205, 1206 (2000).

[95] Id. at 1220.

[96] Compare Brown Univ., 342 N.L.R.B. 483 (2004), with Columbia Univ., 364 N.L.R.B. No. 90 (Aug. 23, 2016).

[97] Brown Univ., 342 N.L.R.B. 483, 493 (2004).

[98] Id. at 487.

[99] Id. at 487-88.

[100] Id. at 492.

[101] Id. at488 (citing Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000)).

[102] Id. at 488.

[103] Id. at 490.

[104] Id.

[105] Id.

[106] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 864–66 (1984) (affirming that administrative agencies are designed to create and promote policy, and are not bound by traditional statutory interpretation doctrines).

[107] Brown Univ., 342 N.L.R.B. 483, 485–86, 488 (2004).

[108] Id. at 485.

[109] Id. at 489.

[110] Id. at 486.

[111] See discussion supra Part II.B.

[112] Columbia Univ., 364 N.L.R.B. No. 90, at 3 (Aug. 23, 2016).

[113] See id. at 3–7.

[114] Id. at 5–7.

[115] Id. at 25.

[116] Id.

[117] See discussion supra p.12.

[118] Columbia Univ., 364 N.L.R.B. No. 90, at 31 (Aug. 23, 2016).

[119] Id. at 10–12, 14.

[120] See id. at 6–8.

[121] Id. at 8.

[122] Id. at 9.

[123] Id. at 7-8.

[124] See discussion supra Part I.A.

[125] See generally Winter, supra note 48, at 64.

[126] O’Gorman, supra note 58, at 178.

[127] O’Gorman, supra note 58,at 178–79.

[128] Compare Brown Univ., 342 N.L.R.B. No. 42, 483 (July 13, 2004), with Columbia Univ., 364 N.L.R.B. No. 90 (Aug. 23, 2016).

[129] O’Gorman, supra note 58,at 199.

[130] Columbia University, 364 N.L.R.B. No. 90, at 6 (Aug. 23, 2016).

[131] O’Gorman, supra note 58 at 199; see also O’Gorman, supra note 58, at 235 (“Republican and Democratic Board members seem to use, in different cases, whatever tools of statutory construction aid them in reaching the desired outcome. While the Board thus purports to act like a court and purports to use judicial methods of statutory construction, the Board is perhaps engaging in policymaking under the guise of interpretation.”). 

[133] National Labor Relations Act, 29 U.S.C. § 152(3) (2016).

[134] Columbia University, 364 N.L.R.B. No. 90, at 6–7 (Aug. 23, 2016).

[135] Id. at 2.

[136] Neal H. Hutchens & Melissa B. Hutchens, Catching the Union Bug: Graduate Student Employees and Unionization, 39 Gonz. L. Rev. 105, 124 (2004).

[137] Rogers, Eaton, & Voos, Effects of unionization on graduate student employees: Faculty-student relations, academic freedom, and pay, 66 ILR Review, 487 (2014).

[138] Beryl Lieff Benderly, The Implications of Graduate Student Unionization, (Sep. 2, 2016, 11:00 am), http://www.sciencemag.org/careers/2016/09/implications-graduate-student-unionization.

[139] Rogers, supra note 137 at 497-98.

[140] See generally id.

[141] See Protecting Academic Freedom, American Association of University Professors, https://www.aaup.org/our-work/protecting-academic-freedom.

[142] Lawrence White, Fifty Years of Academic Freedom Jurisprudence, 36 J.C. & U.L. 791, 797 (2010).

[143] Regents of Univ. of California v. Bakke, 438 U.S. 265, 312 (1978).

[144] Sweezy v. State of N.H. by Wyman, 354 U.S. 234, 250 (1957).

[145] Id. at 263.

[146] Id.

[147] See, e.g., Columbia University, 364 NLRB No. 90, at 7 (Aug. 23, 2016).

[148] See J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment", 99 Yale L.J. 251, 312­–13 (1989).

[149] See id.

[150] Matthew W. Finken, On "Institutional' Academic Freedom, 61 Tex. L. Rev. 817, 848 (1983).

[151] Higher Education Opportunity Act, 20 U.S.C.A. § 1015b(a) (2016).

“Please Unlock Your Phone”: Why Reasonable Suspicion Should Be Extended to Cursory Searches of Electronic Devices at the Border

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Please Unlock Your Phone- Why Reasonable Suspicion Should Be Extended to Cursory Searches of Electronic Devices at the Border Download

Student Note | 107 KY. L. J. ONLINE | Volume 107

“Please Unlock Your Phone”: Why Reasonable Suspicion Should Be Extended to Cursory Searches of Electronic Devices at the Border

Will Carroll[1] 

“It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”[2]

 I. Introduction

It is well established that the primary function of the Bill of Rights is to preserve essential liberties for citizens of the United States.[3] Cornerstone rights such as freedom of speech derive directly from the first ten amendments.[4] The protection of citizens from unreasonable searches and seizures by government agents also originates from the Bill of Rights.[5] The Fourth Amendment establishes:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[6]As one scholar noted, the Fourth Amendment “makes plain, perhaps more than any other provision of the Bill of Rights, that the Constitution does not tolerate the tactics of a police state.”[7] Unfortunately, U.S. border agents act with impunity, employing totalitarian, police state tactics by performing unconstitutional searches and seizures on a daily basis.[8] Although the right to be secure against unreasonable government intrusion is a vital freedom enjoyed by American citizens on the interior of the country, its sanctity is being violated at the border in an area dubbed the “Constitution-free zone.”[9]Traditionally, border searches are exempt from Fourth Amendment protections in a doctrine known fittingly as the border search exception.[10] This exception exists “pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into [the U.S.]” and is “reasonable simply by virtue of the fact that [the searches] occur at the border.”[11] In order to keep pace with rapidly advancing technology, some federal courts have explicitly extended the exception to electronic devices, holding that “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.”[12] This is particularly concerning because in today’s world, smartphones, tablets, and laptops have rapidly shifted from a luxury to a daily necessity.[13] The Supreme Court recognized that “modern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”[14]The practice of searching electronic devices at the border has raised serious Constitutional concerns.[15] Statistics for the 2017 calendar year released by the U.S. Customs and Border Protection (“CBP”) show that 30,200 international travelers, both inbound and outbound, were subjected to electronic device searches.[16] This is roughly a 37% increase from 2016.[17] CBP insists that “the need for border searches of electronic devices is driven by [their] mission to protect the American people and enforce the nation’s laws in this digital age.”[18] Many disagree with these border searches, and in September 2017, the American Civil Liberties Union (“ACLU”) filed a lawsuit in federal court “on behalf of 11 travelers whose smartphones and laptops were searched without warrants at the U.S. border.”[19] The ACLU’s position is that Fourth Amendment protections should extend to border searches, “especially when it comes to electronic devices like smartphones and laptops.”[20]The most recent development in border search exception precedent was decided by the Ninth Circuit in United States v. Cotterman.[21] In Cotterman, the court ruled that a forensic search of electronic devices at the border requires reasonable suspicion.[22] Forensic examination of computers is “a powerful tool capable of unlocking password-protected files, restoring deleted material, and retrieving images viewed on web sites.”[23] While this decision is certainly a step in the right direction, it fails to address the problem of unwarranted cursory searches of electronic devices. A cursory search, or “basic search” according to CBP, is any search that does not require “external equipment, through a wired or wireless connection, to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.”[24] Cursory searches expose your electronic device’s texts, emails, photos, internet history, and other personal information. This Note will argue that the reasonable suspicion standard currently applied to investigative searches of electronic devices at the border should be extended to cursory searches due to the clear violation of digital privacy and Fourth Amendment protections against unreasonable searches and seizures.Part II of this Note will discuss basic Fourth Amendment principles and the origins of the border search exception with accompanying case law. Part III will unpack the Ninth Circuit’s en banc decision in United States v. Cotterman and analyze the current situation of the border search exception. Part IV will illustrate arguments against extending reasonable suspicion to cursory searches of electronic devices at the border while presenting rebuttals to each of those arguments. Specifically, this Note argues that, in United States v. Cotterman, the Ninth Circuit should have extended the reasonable suspicion standard to cursory searches of electronic devices at the border. Part V lays out possible solutions to the issue and the impacts that might result from those solutions. Part VI concludes this Note.

II. A Brief Legal History of the Border Search Exception

The Fourth Amendment protects citizens against unreasonable searches and seizures unless the government has secured a warrant upon probable cause.[25] It is important to note that “the usual remedy for a Fourth Amendment violation is suppression of the illegally seized evidence”[26] via the exclusionary rule. The exclusionary rule is “a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation.”[27] The key factor when applying the exclusionary rule is whether or not the individual had a reasonable expectation of privacy in the area searched.[28] In his concurring opinion in Katz v. United States, Justice Harlan laid out the twofold test for determining whether an individual has an expectation of privacy in a certain area: “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”[29]Exceptions to Fourth Amendment protections are common in the U.S. legal system such as the doctrines of plain view[30] and search incident to arrest.[31] These exceptions demonstrate the willingness of courts to mold the plain text of the Amendment to fit specific situations. For example, in Carroll v. United States, the Supreme Court ruled that warrantless searches of vehicles were permitted as long as the officer performing the search had probable cause.[32] The relevant language asserts that “[t]ravelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.”[33] This language laid the initial groundwork for the border search doctrine and is often cited in cases utilizing the exception.[34]Authority for the border search exception derives from several landmark Supreme Court decisions.[35] In justifying the border search doctrine, the Court has stated that the “exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country.”[36] In particular, “the Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.”[37] The Court has explicitly stated that “the expectation of privacy is less at the border than it is in the interior.”[38] However, despite the broad language of border search exception cases, the Court has also implied that the Fourth Amendment might impose limits on border searches, but it has never definitively spoken on the subject.[39] Courts must balance “the sovereign’s interests at the border” with the Fourth Amendment rights of the individual contesting the search.[40]While the Supreme Court has addressed searches of persons[41] and vehicles[42] at the border, it has never directly ruled on the issue of searches of personal electronic devices at the border. The law on border searches of electronic devices derives mostly from the Courts of Appeals.[43] In United States v. Arnold, the Ninth Circuit extended the border search exception to electronic devices, holding that “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.”[44] Five years later, the Ninth Circuit was called on again to review the issue of border searches and electronic devices in United States v. Cotterman.[45] 

III.  Cotterman and Beyon

2. United States v. Cotterman 

In United States v. Cotterman, Howard Cotterman and his wife were crossing the U.S.-Mexico border when he was flagged by the Treasury Enforcement Communication System for potentially possessing child pornography.[46] During the search of his vehicle, border agent Antonio Alvarado recovered and inspected three cameras and two laptops containing personal photos, along with several password-protected files.[47] The Cottermans were set free; however, suspecting that Mr. Cotterman had child pornography locked behind password-protection, the agents transported the laptops and cameras 170 miles to an off-site facility in order to conduct a forensic search of the devices.[48] The investigative search revealed hundreds of images of child pornography behind the password-protected files on Mr. Cotterman’s laptop.[49]After a grand jury indicted Mr. Cotterman for several offenses related to child pornography,[50] Mr. Cotterman moved to suppress the evidence claiming that it was acquired from an unlawful search and seizure violating his Fourth Amendment rights.[51] Following lower court proceedings, a divided three panel Ninth Circuit held that “reasonable suspicion was not required for the search and that ‘the district court erred in suppressing the evidence lawfully obtained under border search authority.’”[52]On rehearing en banc, the court ruled that forensic examination of electronic devices at the border requires a showing of reasonable suspicion.[53] The court explained that “[electronic devices] contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails,”[54] all of which “implicate[ ] the Fourth Amendment’s specific guarantee of the people’s right to be secure in their ‘papers.’”[55] In coming to their conclusion, the majority conceded that “legitimate concerns about child pornography do not justify unfettered crime-fighting searches or an unregulated assault on citizens’ private information.”[56] The court stated that “[r]easonable suspicion is a modest, workable standard that is already applied in the extended border search, Terry stop, and other contexts.”[57] Finally, the court reasoned that “[i]ts application to the forensic examination here will not impede law enforcement’s ability to monitor and secure our borders or to conduct appropriate searches of electronic devices.”[58]The court applied this standard to Mr. Cotterman’s case and ruled that the investigative search of his laptop was conducted upon reasonable suspicion and his “motion to suppress therefore was erroneously granted.”[59] Although Mr. Cotterman was unable to suppress the evidence, the court correctly balanced “the sovereign’s interests at the border” with the Fourth Amendment rights of the individual contesting the search.[60] Citing Justice Scalia, the court explained that “[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”[61] However, the court did not completely overrule Arnold, which rejected the requirement of reasonable suspicion for both cursory and investigative searches of electronic devices.[62] In fact, they explicitly stated that “we have approved a quick look and uninstructive search of laptops.”[63] While the court solved the issue of unreasonable investigative searches, the court is legitimizing the policy that cursory searches of personal electronic devices do not require reasonable suspicion.2. The Current SituationAs a result of Cotterman, travelers can be confident that border agents lack the authority to perform investigative searches of their electronic devices without reasonable suspicion. This is clearly a win for digital privacy rights. Unfortunately, the problem of suspicionless cursory searches is still rampant, as demonstrated by the ACLU, which recently filed a lawsuit against the Department of Homeland Security challenging border searches of electronic devices.[64]The concerning part of electronic device border searches stems from the fact that these are not isolated incidents. CBP released statistics for 2017 claiming that 30,200 international travelers, inbound and outbound, had their electronic devices searched.[65] That is roughly a 37% increase of electronic devices searched from 2016 to 2017.[66] CBP argues that national security outweighs the inconveniences of a small percentage of travelers, but privacy advocates disagree, stating that “[t]hey see the growth of a surveillance state eating away civil liberties a mouthful at a time.”[67]In early January 2018, CBP released a directive that outlined their procedures related to searching electronic devices at the border.[68] The directive states that “[t]he plenary authority of the Federal Government to conduct searches and inspections of persons and merchandise crossing our nation’s borders is well-established and extensive; control of the border is a fundamental principle of sovereignty.”[69]Outlining CBP procedures, the directive states:Border searches of electronic devices may include searches of the information stored on the device when it is presented for inspection or during its detention by CBP for an inbound or outbound border inspection. The border search will include an examination of only the information that is resident upon the device and accessible through the device’s operating system or through other software, tools or applications.[70]Further, the directive distinguishes between basic and advanced border searches, articulating:In the course of a basic search, with or without suspicion, an Officer may examine an electronic device and may review and analyze information encountered at the border . . . An advanced search is any search in which an Officer connects external equipment, through a wired or wireless connection, to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.[71]The directive requires CBP to obtain reasonable suspicion before performing an advanced search, i.e. an investigative search.[72] Here, it is clear they are abiding by Cotterman’s precedent. In Cotterman, the advanced search occurred when the password-protected files on Mr. Cotterman’s computer were accessed by forensic software at the off-site facility.[73]In sum, the 2018 CBP Directive continues to permit unconstitutional border searches.[74] In America, the people are taking a stand. For example, there has been a recent spike in publications instructing readers on how to protect their privacy at the border[75] and privacy complaints continue to be filed against the Department of Homeland Security.[76] Even with this resistance, these constitutional violations are unlikely to stop.[77] What is the next step?The Supreme Court has never directly addressed border searches of electronic devices. In Riley v. California the Court ruled that “a warrant is generally required before [searching a cell phone], even when a cell phone is seized incident to arrest.”[78] The Court recognized that because times have changed and modern smartphones contain highly private and sensitive data, the intrusion on privacy today is not limited to physical realities.[79] Riley proves that federal courts are at the very least cognizant of the importance of electronic devices and would be a logical place for the Supreme Court to start in making future rulings. Until then, however, it is important for lower courts to take the Cotterman decision one step further and apply the reasonable suspicion standard to cursory searches of electronic devices.

3. Arguments Against Extending Reasonable Suspicion to Cursory Searches: the Cotterman Dissent

Judge Smith’s dissenting opinion in Cotterman lays out three primary arguments against extending reasonable suspicion to cursory searches of electronic devices: administrative burdens, national security concerns, and the diminished expectation of privacy at the border.[80] Although Judge Smith’s dissent was focused on the reasonable suspicion standard as applied to investigative searches of electronic devices, the same general arguments apply with equal force to cursory searches of electronic devices.A. The Dangers of Administrative BurdensThe primary argument against extending reasonable suspicion to cursory searches of electronic devices at the border is that the additional step of requiring border agents to use their reasonable judgment will create a potentially dangerous administrative burden.[81] The dissent in Cotterman was concerned that “[r]equiring law enforcement to make such complex legal determinations on the spot, and in the face of potentially grave national security threats, strips agents of their necessary discretion and deprives them of an efficient and administrable rule.”[82]Border agents must rely on their broad discretion without case-by-case determination of individuals because “[they] process hundreds of thousands of travelers each day and conduct thousands of searches of electronic devices each year.”[83] According to the dissent, forcing agents to comply with a case-by-case determination to conduct investigative searches of electronic devices at the border creates an undue burden due to the sheer number of individuals crossing the border every day.[84]In practice, however, the reasonable suspicion standard would cause minimal administrative burdens on border agents while preserving the critical rights guaranteed by the Fourth Amendment. The Cotterman court best articulated the sentiment when it stated, “[r]easonable suspicion is a modest, workable standard that is already applied in the extended border search, Terry stop, and other contexts.”[85] Continuing, the court explained that “[i]ts application to the forensic examination here will not impede law enforcement’s ability to monitor and secure our borders or to conduct appropriate searches of electronic devices.”[86]The same can easily be said about cursory examination of electronic devices. The standard of reasonable suspicion is less than probable cause, requiring “merely ‘a particularized and objective basis’ for suspecting” the individual is engaging in criminal activity.[87] Simply requiring border agents to have some reasonable, objective basis for conducting a cursory search on a personal electronic device is hardly an administrative burden.In the world of Constitutional Law, reasonable suspicion is a very moderate standard. The officer—or in cases of border searches, border agent—need not have a definitive certainty that the person is engaged in some unlawful conduct. Rather, the agent must assess the totality of the circumstances[88] and have some suspicion that the traveler coming through the border is involved in an illegal activity.The dissent in Cotterman worries that the holding forces agents “to determine on a case–by–case and moment–by–moment basis whether a search of digital data remains ‘unintrusive’…or has become ‘comprehensive and intrusive.’”[89] A solution is to simply extend reasonable suspicion to cursory searches of electronic devices. The “complex legal determination[]”[90] the dissent seems to be worried about would not exist if border agents were not required to differentiate between investigative and cursory searches. Applying the reasonable suspicion standard to both types of searches clearly eliminates this problem.B. The Interest in National SecurityThe Cotterman dissent also argued that there is an ever-present threat of terrorists entering the country.[91] Citing a U.S. Customs and Border Protection directive, Judge Smith explained that “border searches of electronic storage devices are ‘essential’ for ‘detect[ing] evidence relating to terrorism and other national security measures.’”[92] Further, terrorists tend to rely on electronic storage devices for a multitude of uses such as copying and altering passports and other travel documents.[93] Therefore, “[b]y providing special privacy protections for electronic devices at the border, the majority eliminates the powerful deterrent of suspicionless searches and significantly aids” terrorists and criminals.[94] This sentiment has been shared among scholars. One law review article suggests that the Cotterman decision has made it “more difficult for U.S. border agents to combat terrorism and child pornography” by carving “out a piece of the border search doctrine.”[95]Judge Smith predicted that “a reasonable suspicion requirement will likely disincentivize agents to conduct laptop searches in close cases.”[96] Theoretically, border agents accused of conducting an unreasonable search will face “very real consequences” such as the possibility of being sued in their official capacities for civil damages.[97] By disincentivizing border agents from conducting searches of electronic devices for fear of reprimand or legal action against them, the dissent argues that “these misaligned incentives create unnecessary risk … for our entire nation.”[98]However, there is no proof that extending reasonable suspicion to cursory searches, let alone investigative searches, would negatively impact the efficiency of border agents in carrying out their duties. Requiring the agent to make a reasonable determination in light of the totality of the circumstances is not a significant burden on the agent’s ability to carry out his duty. Reasonable suspicion “is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.”[99] The border agent simply needs to have “a minimal level of objective justification” for searching the phone.[100] This standard is extremely flexible and, at the very least, creates a baseline for Fourth Amendment protections of electronic devices at the border.Further, the dissent’s argument that attaching reasonable suspicion to a border search of an electronic device will somehow disincentivize border agents from conducting a search in the first place is unfounded. Simply because a border agent must use a minimal level of objective justification to search an electronic device does not mean they will be exposed to legal consequences. In fact, lawsuits have already been filed against CBP for the invasive searches conducted on electronic devices even without the reasonable suspicion standard.[101]To assert that extending reasonable suspicion to searches of electronic devices would cause personal reprimand is baseless. If anything, it would diminish the number of lawsuits against CBP because the standard for conducting a search would be higher, theoretically resulting in a better-informed staff of border agents.C. The Diminished Expectation of Privacy at the BorderFinally, the dissent in Cotterman suggests that searches of electronic data have never been immune to the border search exception.[102] Judge Smith questioned the privacy of electronic devices to begin with, explaining that electronic storage devices are “hardly a bastion of privacy” because “they transmit a massive amount of intimate data to the public on an almost constant basis.”[103] According to Judge Smith, due to “the steady erosion of our privacy on the Internet, searches of electronic storage devices may be increasingly akin to a well-placed Internet search.”[104] The dissent asserts that “[m]apping our privacy rights by the amount of information we carry with us leads to unreasonable and absurd results.”[105]The Supreme Court has explicitly stated that because “an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely.”[106] Further, “not every search ‘is acceptable solely because a person is in custody.’”[107] This same logic can be applied to travelers and border searches of electronic devices. The Cotterman court explained that “the uniquely sensitive nature of data on electronic devices carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property.”[108] There is no reason why this principle should not also apply to cursory searches as well. The Court has already implied that searching the cell phone of an arrestee without a warrant is an unreasonable intrusion into the arrestee’s constitutional privacy due to the sensitive information contained on modern smartphones.[109] It is logical to apply the reasonable suspicion standard to cursory searches of electronic devices.The Supreme Court explicitly stated that “the Fourth Amendment protects people, not places.”[110] As the Court explained in Riley, “when ‘privacy-related concerns are weighty enough’ a ‘search may require a warrant, notwithstanding the diminished expectations of privacy’” of the individual.[111] Even more so, this Note is not arguing that a warrant is required for a border search of an electronic device, rather it is arguing that the workable standard of reasonable suspicion be applied. As the Supreme Court noted in 1990:Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.[112]Pursuant to Riley, the privacy-related concerns in an individual’s electronic device should clearly outweigh the diminished expectation of privacy at the border.

4. Solutions and Results

The most effective way to fix this problem is through legislative action. However, due in large part to partisan politics, the burden of responsibility for upholding U.S. citizens’ Fourth Amendment rights in cases of electronic device border searches falls upon the federal courts. As discussed earlier, CBP’s latest directive was clearly influenced by the Cotterman decision.[113] If courts take the initiative in restoring digital privacy rights by applying the reasonable suspicion standard to cursory searches of electronic devices, CBP would abide by that decision. Therefore, while legislative action would be the most effective and secure way to establish this standard, courts clearly have the ability to influence CBP policies.What would the application of reasonable suspicion to cursory searches of electronic devices at the border entail? Although reasonable suspicion “is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence,” there must still be some “minimal level of objective justification for making the stop.”[114] In practice, a border agent would first need to assess the totality of the circumstances, i.e. the entire situation, as opposed to one specific factor.[115] Based on the totality of the circumstances, the agent would then make an objective determination as to whether the particular traveler was engaged in some type of criminal activity or may be a threat to national security.For instance, if the agent observes physical manifestations of nervousness from a particular traveler such as profuse sweating or shaking, that might be enough to satisfy the reasonable suspicion standard. The Supreme Court has noted that “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”[116] Similarly, if the agent notices strange travel patterns in the traveler’s documents, that too might be enough to meet the low standard of reasonable suspicion. Again, reasonable suspicion “does not deal with hard certainties, but with probabilities.”[117] Applying this standard to cursory searches of electronic devices is a small demand, considering the privacy rights of U.S. citizens are being infringed upon by border agents on a daily basis.

5. Conclusion

Courts need to extend reasonable suspicion to cursory searches of electronic devices at the border. Generally speaking, however, that would only be the start. The border search exception’s detrimental effect on digital privacy is a stain on the integrity of the Constitution. The exception is a relic of the past in this age of rapid technological advancement. It clearly requires a new approach as we store more and more highly sensitive, confidential data on our phones, laptops, and tablets. At the end of the day, Cotterman was a strong starting point, but the next logical step is to extend the reasonable suspicion standard to cursory searches of electronic devices. 

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[1] J.D. Expected May 2019. Thank you to family, friends, and the Kentucky Law Journal staff for making this note possible.

[2] Kyllo v. United States, 533 U.S. 27, 33–34 (2001).

[3] Bill of Rights Institute, Bill of Rights of the United States of America (1791), http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/ (last visited Jan. 20, 2018).

[4] U.S. Const. amend. I.

[5] Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. & Mary L. Rev. 197, 197 (1993).

[6] U.S. Const. amend. IV.

[7] Maclin, supra note 5, at 197.

[8] See CBP Releases Updated Border Search of Electronic Device Directive and FY17 Statistics, U.S. Department of Homeland Security, https://www.cbp.gov/newsroom/national-media-release/cbp-releases-updated-border-search-electronic-device-directive-and (last modified Jan. 9, 2018).

[9] See The Constitution in the 100-Mile Border Zone, American Civil Liberties Union, https://www.aclu.org/other/constitution-100-mile-border-zone (last visited Jan. 22, 2018); see also Scott Bomboy, Does a Constitution-Free Zone Really Exist in America?, National Constitution Center (Feb. 15, 2013), https://constitutioncenter.org/blog/does-a-constitution-free-zone-really-exist-in-america (explaining that the phrase “Constitution free zone” derives from the fact that border agents can search any electronic device without cause, thus bypassing traditional Fourth Amendment protections).

[10] See United States v. Ramsey, 431 U.S. 606, 620 (1977).

[11] Id. at 616.

[12] United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008). The standard of reasonable suspicion is defined as “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 4419 U.S. 411, 417-18 (1981). In making such a determination, “the totality of the circumstances—the whole picture—must be taken into account.” Id. at 417.

[13] Emily Dreyfuss, No, iPhones Aren’t Luxury Items. They’re Economic Necessities, Wired (Mar. 7, 2017), https://www.wired.com/2017/03/no-iphones-arent-luxury-items-theyre-economic-necessities/.

[14] Riley v. California, 134 S. Ct. 2473, 2484 (2014).

[15] Marcus Wolf, Border Agents Can Legally Search Electronic Devices, Government Technology (Apr. 17, 2017), http://www.govtech.com/security/Border-Agents-Can-Legally-Search-Electronic-Devices.html.

[16] U.S. Department of Homeland Security, supra note 8.

[17] Id. (19,051 in 2016 compared to 30,200 in 2017).

[18] Id.

[19] Lawsuit on Behalf of 11 Travelers Challenges Searches of Electronic Devices as Unconstitutional, American Civil Liberties Union (Sept. 13, 2017), https://www.aclu.org/news/aclu-eff-sue-over-warrantless-phone-and-laptop-searches-us-border.

[20] Esha Bhandari, Nathan Freed Wessler, and Noa Yachot, Can Border Agents Search Your Electronic Devices? It’s Complicated, American Civil Liberties Union (Mar. 14, 2017), https://www.aclu.org/blog/privacy-technology/privacy-borders-and-checkpoints/can-border-agents-search-your-electronic.

[21] United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013).

[22] Id. at 957.

[23] Id.

[24] CBP Directive No. 3340-049A: Border Search of Electronic Devices, U.S. Customs and Border Protection (Jan. 4, 2018), https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/CBP-Directive-3340-049A-Border-Search-of-Electronic-Media-Compliant.pdf.

[25] U.S. Const. amend. IV.

[26] Investigation and Police Practices, 80 Geo. L.J. 939, 939 (1992).

[27] Davis v. United States, 564 U.S. 229, 231–232 (2011).

[28] See Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J. concurring).

[29] Id. at 361.

[30] See Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971) (“It is well established that under certain circumstances the police may seize evidence in plain view without a warrant.”).

[31] See Hill v. California, 401 U.S. 797, 804–805 (1971) (holding that a search incident to a valid arrest does not violate the Fourth Amendment).

[32] Carroll v. United States, 267 U.S. 132,154 (1925).

[33] Id.

[34] See United States v. Montoya de Hernandez, 473 U.S. 531, 563 (1985) (Stevens, J. Concurring) (quoting Carroll, 267 U.S. at 154).

[35] See United States v. Ramsey, 431 U.S. 606 (1977); United States v. Flores-Montano, 541 U.S. 149 (2004).

[36] Ramsey, 431 U.S. at 620.

[37] Flores-Montano, 541 U.S. at 152.

[38] Id. at 154.

[39] United States v. Seljan, 547 F.3d 993, 999–1000 (9th Cir. 2008).

[40] United States v. Montoya de Hernandez, 473 U.S. 531, 539–40 (1985).

[41] See id. at 544.

[42] See Flores-Montano, 541 U.S. at 155-56.

[43] See United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008); United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013).

[44] Arnold, 533 F.3d at 1008.

[45] United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013).

[46] Id. at 957.

[47] Id. at 957-58.

[48] Id. at 958.

[49] Id. at 959.

[50] Id.

[51] Id.

[52] Id.

[53] Id.at 968.

[54] Id. at 964.

[55] Id. (quoting U.S. Const. amend. IV).

[56] Id. at 966.

[57] Id. In Terry, the Supreme Court explained that “[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of a physical harm.” Terry v. Ohio, 392 U.S. 1, 24 (1968). The Court ruled that “there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Id. at 27 (emphasis added). Reasonable suspicion generally requires that the officer “point[s] to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrants” an intrusion. Id. at 21.

[58] Cotterman, 709 F.3d at 966.

[59] Id. at 970.

[60] United States v. Montoya de Hernandez, 473 U.S. 531, 539–40 (1985).

[61] Cotterman, 709 F.3d at 965 (quoting Kyllo v. United States, 533 U.S. 27, 33–34 (2001)).

[62] United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008).

[63] Id. at 960.

[64] See Lawsuit on behalf of 11 Travelers supra note 19.

[65] U.S. Department of Homeland Security, supra note 8.

[66] Id.

[67] Frank Miniter, Are You Okay With The Government Searching Your Cell Phone?, Forbes (Jan. 8, 2018, 01:19PM), https://www.forbes.com/sites/frankminiter/2018/01/08/are-you-okay-with-the-government-searching-your-cell-phone/#173bca0410ed.

[68] U.S. Customs and Border Protection, supra note 25.

[69] Id.

[70] Id.

[71] Id.

[72] Id.

[73] United States v. Cotterman, 709 F.3d 952, 958 (9th Cir. 2013).

[74] Sophia Cope & Aaron Mackey, New CBP Border Device Search Policy Still Permits Unconstitutional Searches, Electronic Frontier Foundation (Jan. 8, 2018), https://www.eff.org/deeplinks/2018/01/new-cbp-border-device-search-policy-still-permits-unconstitutional-searches.

[75] See Hilary Beaumont, Invasion of Privacy: Border Agents are Seizing Travellers’ Phones and Asking for Their Passwords. Here’s How to Protect Yourself, Vice News (Feb. 17, 2017), https://news.vice.com/en_ca/article/ywn8pj/how-to-secure-your-phone-when-crossing-the-border; Esha Bhandari, Nathan Freed Wessler, and Noa Yachot, Can Border Agents Search Your Electronic Devices? It’s Complicated, American Civil Liberties Union (Mar. 14, 2017), https://www.aclu.org/blog/privacy-technology/privacy-borders-and-checkpoints/can-border-agents-search-your-electronic; Rebecca Harrington, Federal Agents Can Search Your Phone at the U.S. Border – Here’s How to Protect Your Personal Information, Business Insider (Sept. 13, 2017, 2:37 PM), http://www.businessinsider.com/can-us-border-agents-search-your-phone-at-the-airport-2017-2; and E.D Cauchi, What if U.S. Border Agents Ask for Your Cellphone?, NBC News (Apr. 4, 2017), https://www.nbcnews.com/news/us-news/what-if-u-s-border-agents-ask-your-cellphone-n742511; Esha Bhandari, Nathan Freed Wessler, and Noa Yachot, Can Border Agents Search Your Electronic Devices? It’s Complicated, American Civil Liberties Union (Mar. 14, 2017), https://www.aclu.org/blog/privacy-technology/privacy-borders-and-checkpoints/can-border-agents-search-your-electronic.

[76] Charlie Savage, Privacy Complaints Mount Over Phone Searches at US Border Since 2011, Boston Globe, https://www.bostonglobe.com/news/nation/2017/12/23/privacy-complaints-mount-over-phone-searches-border-since/3Nk97AUtgK7wQEKZ0pkRnI/story.html.

[77] Searches of Phones at the Border Unlikely to Stop, Washington Examiner (Jan. 16, 2018, 12:01 AM), http://www.washingtonexaminer.com/searches-of-phones-at-the-border-unlikely-to-stop/article/2645452.

[78] Riley v. California, 134 S.Ct. 2473, 2493 (2014).

[79] Id. at 2489-90.

[80] United States v. Cotterman, 709 F.3d 952, 981–94 (9th Cir. 2013) (Smith, J. dissenting).

[81] Id. at 982.

[82] Id.

[83] Id.

[84] Id.

[85] Id. at 966.

[86] Id.

[87] United States v. Tiong, 224 F.3d 1136, 1140 (9th Cir. 2000) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)).

[88] The totality of the circumstances focuses on the entire situation rather than one specific factor. Totality-of-the-Circumstances Test, Black’s Law Dictionary (10th ed. 2014).

[89] Cotterman, 709 F.3d at 984. When the dissent mentions an “unitrusive” search, they mean a cursory search, and a “comprehensive” search means an investigative search.

[90] Id. at 984.

[91] Id. at 984–85.

[92] Id. at 985 (U.S. Customs and Border Protection, Border Search of Electronic Devices Containing Information, CBP Directive No. 3340–049 § 1 (2009), https://www.dhs.gov/xlibrary/assets/cbp_directive_ 3340-049.pdf).

[93] Cotterman, 709 F.3d at 985.

[94] Id.

[95] Michael Creta, A Step in the Wrong Direction: The Ninth Circuit Requires Reasonable Suspicion for Forensic Examinations of Electronic Storage Devices During Border Searches in United States v. Cotterman, B.C. L. Rev E-Supp., 2014, at 45. Michael Creta, A Step in the Wrong Direction: The Ninth Circuit Requires Reasonable Suspicion for Forensic Examinations of Electronic Storage Devices During Border Searches in United States v. Cotterman, 55 B.C. L. Rev E-Supplement 31, 45 (2014).

[96] Cotterman, 709 F.3d at 985.

[97] Id.

[98] Id. at 986.

[99] Illinois v Wardlow, 528 U.S. 119, 123 (2000).

[100] Id.

[101] See, e.g., Zack Huffman, Homeland Security Sued Over Warrantless Tech Searches at Border, Courthouse News Service (Sept. 13, 2017), https://www.courthousenews.com/homeland-security-sued-warrantless-tech-searches-border/.

[102] Cotterman, 709 F.3d at 986.

[103] Id.

[104] Id.

[105] Id. at 987.

[106] Riley v. California, 134 S.Ct. 2473, 2488 (2014).

[107] Id. (quoting Maryland v. King, 569 U.S. 435, 463 (2013)).

[108] Cotterman, 709 F.3d at 966 (majority opinion).

[109] Riley, 134 S.Ct. at 2489–90.

[110] Katz v. United States, 389 U.S. 347, 351 (1967).

[111] Riley, 134 S.Ct. at 2488 (quoting Maryland v. King, 569 U.S. 435, 438 (2013)).

[112] Alabama v. White, 496 U.S. 325, 330 (1990) (emphasis added).

[113] See U.S. Customs and Border Protection, supra note 91.

[114] Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)).

[115] Totality-of-the-Circumstances Test, Black’s Law Dictionary (10th ed. 2014).

[116] Wardlow, 528 U.S. at 124 (2000).

[117] United States v. Cortez, 449 U.S. 411, 418 (1981).

CAFA Removal and Jurisdiction: Basic Overview and Practice Points

CAFA Removal and Jurisdiction: Basic Overview and Practice Points

Article | 107 KY. L. J. ONLINE | May 20, 2018

Megan Niespodziany [1]

Traditionally, when a defendant finds itself being sued in a class action lawsuit, there are two avenues for removal to federal court: traditional diversity grounds and federal question grounds.[2] The implementation of the Class Action Fairness Act (CAFA) provides additional avenues for accomplishing removal.

I. Parameters

With the enactment of CAFA, Congress significantly expanded federal courts’ jurisdiction over class actions and mass actions. The primary CAFA provisions are found in 28 U.S.C. § 1332(d)(B). This section defines a class action under CAFA as “any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action.”[3] It is important to note that the class action must have been brought by the plaintiff under Federal Rule of Civil Procedure 23 or a similar state statute using the typical class action language (commonality, typicality, numerosity, and so on).[4] If the action is brought under some other statute, it is not removable under CAFA, but may be removable under diversity or federal question grounds.[5]The most important points about CAFA removal and jurisdiction involve a relaxed diversity requirement and a heightened amount in controversy requirement. Under CAFA, a removing defendant must only show that at least one plaintiff is diverse from at least one defendant instead of showing complete diversity.[6] CAFA also increased the amount in controversy requirement from $75,000 to $5 million, and the $5 million amount can now be satisfied by aggregating each plaintiff’s claim amount—something not permitted under traditional diversity rules.[7] The amount in controversy can be shown by demonstrating several types of damages, including compensatory, statutory, and punitive damages, as well as equitable relief.[8] Attorney’s fees can also be included when authorized by statute. [9]There are differences among circuits when it comes to the burden of establishing the amount in controversy. In the Fourth Circuit, the defendant must establish the jurisdictional amount by a preponderance of the evidence when damages are unspecified, as opposed to the legal certainty a plaintiff enjoys when initially invoking federal jurisdiction by filing in federal court.[10] In the Seventh Circuit, courts employ a legal impossibility standard which makes this circuit very removal-friendly.[11] In the Tenth Circuit, a defendant will satisfy the amount in controversy requirement if it can show the amount is not legally certain to be less than the jurisdictional amount.[12]CAFA and traditional diversity jurisdiction can be plead in a removal proceeding in the alternative.[13] In addition to expanding federal class action jurisdiction under CAFA, Congress also simply provided an additional method for class action removal, as the multiple avenues for removal are not mutually exclusive. Moreover, a class does not yet have to be certified in order for defendants to remove under CAFA.[14] Similarly, post-removal events such as denial of class certification do not divest the court of jurisdiction.[15]Traditional methods for determining citizenship apply under CAFA; however, there is one exception. 28 U.S.C. § 1332(d)(10) provides that an unincorporated association is “a citizen of the State where it has its principal place of business and the State under whose laws it is organized.”[16]  This is the standard generally reserved for corporations under traditional removal statutes.

II. Primary Exceptions/Exclusions

There are certain class actions and subject matters that that cannot be removed under CAFA. These excepted actions include claims arising solely under:

• A covered security as defined by the Securities Act of 1933 and the Securities Exchange Act of 1934;

• Relation to the internal affairs or governance of a corporation or other business entity and brought under the laws of the state in which the business entity is organized or incorporated; or

• Relation to the rights, duties and obligations related to any security as defined by the Securities Act of 1933 and associated regulations.[17]

There are three other exceptions under CAFA that require or allow a federal court to decline jurisdiction. These three exceptions include (1) the home state controversy exception,[18] (2) the local controversy exception,[19] and (3) the interest of justice exception.[20] The home state controversy exception mandates federal courts decline jurisdiction if two-thirds or more of the members of a proposed plaintiff class and the primary defendants are citizens of the state where the action was originally filed.[21] The local controversy exception mandates federal courts decline jurisdiction where several criteria are met:

• Greater than two-thirds of the members of all proposed plaintiff classes are citizens of the state in which the class action was originally filed;

• At least one defendant is a defendant:

  • From whom significant relief is sought by members of the plaintiff class;

  • Whose alleged conduct forms a significant basis for the claims asserted; and

  • Who is a citizen of the state in which the action was originally filed.

• The principal injuries resulting from the alleged conduct were incurred in the State in which the action was originally filed; and

• During the three year period preceding the filing of the class action, no other class action has been filed asserting the same or similar allegations against any of the defendants on behalf of the same or other persons.[22]

The interest of justice exception, sometimes called the discretionary exception, allows a federal court to decline jurisdiction when greater than one-third, but less than two-thirds, of the members of the proposed plaintiff class and the primary defendants are citizens of the state in which the class action was originally filed.[23] The court may do so after considering the following factors:

• Whether the claims asserted involve matters of national or interstate interest;

• Whether the claims asserted will be governed by the laws of the state where the action was originally filed or by the laws of other states;

• If the class action has been pleaded in a manner that seeks to avoid federal jurisdiction;

• If the action was brought in a forum with a distinct nexus to the class members, alleged harm, or defendants;

• The number of citizens of the state in which the action was originally filed in all proposed plaintiff classes is substantially larger than the number of citizens from any other state, and the citizenship of the other members of the proposed class is dispersed among a substantial number of states.[24]

Additionally, should there exist a statutory bar to removal separate from the CAFA provisions, it is clear in most circuits that those removal bars will apply to bar removal under CAFA. In other words, CAFA’s removal statute does not seem to impliedly repeal other statutory bars,[25] although there could be room to argue this is not the case. For example, in Passarella v. Ginn Co., the court held that the bar to removal under 15 U.S.C. § 1719, dealing with the Interstate Land Sales Full Disclosure Act (ILSA) was impliedly repealed by CASA because CASA was more recently enacted and provided a more general removal right for qualifying class actions.[26]

III. Pitfalls and Special Considerations

The following includes some pitfalls and special considerations that may be encountered when removing a CAFA class action to federal court:

• Plaintiffs attempt to plead around CAFA jurisdiction in many ways—some of these are permitted and some are not. First, plaintiffs are not permitted to disclaim a recovery greater than $5 million prior to class certification in order to avoid CAFA jurisdiction.[27] Regarding splitting up a class action into several smaller class actions, circuits are divided. The Sixth Circuit suggests that this practice would be allowed if the segmentation was not arbitrary and not meant to solely frustrate CAFA, while the Eighth Circuit holds that aggregation of amounts from separate class actions is not permitted because the statutory language of CAFA did not contemplate such a scenario.[28] Plaintiffs can permissibly structure the putative class in a way that will invoke either the local controversy or home state controversy exceptions described.

• The law is unclear when determining whether a federal judge must dismiss or remand to state court when they realize neither they nor the state court have jurisdiction, making remand futile. This debate is centered on 28 U.S.C. § 1447(c) which states that a case shall be remanded if it appears the court lacks jurisdiction prior to final judgment. The First, Fifth, and Ninth Circuits have recognized the “futility exception” which supports dismissal rather than remand of a case that lacks viable state claims.[29] Other circuits have rejected the “futility exception” and support a more literal read of 28 U.S.C. § 1447(c).[30] If a defendant is in the latter group, they could end up having to re-litigate the dispositive finding that a class plaintiff lacks jurisdiction, wasting time and money.

• CAFA provides that a district court’s order denying CAFA jurisdiction is appealable— this is a large departure from traditional rules regarding the appealability of remand orders.[31]

• There are several traditional removal rules that do not apply when a class action is removed under CAFA. Therefore, if defense counsel is attempting to remove under multiple bases, they will need to ensure that the traditional rules are satisfied. These rules include (1) the requirement that removal happen within one year, (2) the rule that no defendant can be a citizen of the forum state, and (3) the rule that all defendants must consent to removal.[32]

• Finally, it can be counter-intuitive for removing counsel to tally potential damages in order to reach the $5 million threshold for CAFA jurisdiction, especially when it comes to punitive damages. Putting statements on the record that punitive or other damages may exist that the plaintiff class has not alleged can be dangerous. It is also obviously not a position any attorney wants to put their client in, regardless of whether or not these statements are legally binding.

IV. Conclusion

CAFA is still in its infancy, and there is still much to be learned and gaps will continue to be discovered. The above points are only some of the issues to be considered when attempting to remove a class action to federal court through CAFA. Always consult the rules in your circuit prior to determining whether removal is best for your client. 

---

[1] Megan Niespodziany is a member of Dinsmore & Shohl LLP’s litigation practice group in Lexington, Kentucky, where she focuses on commercial litigation and commercial disputes. Her experience includes litigation surrounding contract disputes, coal related litigation, banking litigation, and class actions. She is experienced in all aspects of the litigation process, including motion practice and discovery. She is a graduate of the University of Kentucky College of Law.

[2] See 28 U.S.C. §§ 1331-1332.

[3] 28 U.S.C. § 1332(d)(1)(B) (2011).

[4] See, e.g., Zuniga v. Bernalillo Cty., 319 F.R.D. 640, 645 (D.N.M. 2016); Fed. R. Civ. P. 23.

[5] See, e.g., West Virginia v. CVS Pharm., Inc., 646 F.3d 169, 172 (4th Cir. 2011) (refusing to exercise CAFA jurisdiction over an action brought under a West Virginia statute that regulated pharmacy practice and state consumer protection acts, neither of which involved “provisions providing for a typical class action, such as provisions addressing the adequacy of representation, numerosity, commonality, and typicality requirements”).

[6] 28 U.S.C. § 1332(d)(2) (2011); see Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1021 (9th Cir. 2007).

[7] 28 U.S.C. § 1332(d)(2) (2011); see, e.g., Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 571 (2005) (superseded by statute on other grounds) (recognizing that CAFA "abrogates the rule against aggregating claims").

[8] See, e.g., Oshana v. Coca-Cola Co., 472 F.3d 506, 512 (7th Cir. 2006) (where plaintiff’s complaint alleged a variety of types of damages, including compensatory, punitive, and attorney’s fees).

[9] Baker v. Equity Residential Mgmt., L.L.C., 996 F. Supp. 2d 1,7 (D. Mass. 2014) (explaining that an exception to the general rule of not including attorney’s fees in calculation of damages is when allowed by state statute).

[10] Bartnikowski v. NVR, Inc., 307 Fed. Appx. 730, 734 (4th Cir. 2009).

[11] Back Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 831 (7th Cir. 2011).

[12] Ullman v. Safeway Ins. Co., 995 F. Supp. 2d 1196, 1215 (10th Cir. 2013).

[13] See, e.g., Gentry v. Hyundai Motor Am., Inc., 2017 U.S. Dist. LEXIS 8609, *167 (W.D. Va. 2017); Stell v. Gibco Motor Express, LLC, 2016 U.S. Dist. LEXIS 61124, *4-7 (S.D. Ill. 2016).

[14] Cunningham Charter Corp. v. Learjet, Inc., 592 F.3d 805, 806-07 (7th Cir. 2010).

[15] Id.

[16] 28 U.S.C. § 1332(d)(10) (2011).

[17] 28 U.S.C. § 1332(d)(9) (2011).

[18] 28 U.S.C. § 1332(d)(4)(B) (2011).

[19] 28 U.S.C. § 1332(d)(4)(A) (2011).

[20] 28 U.S.C. § 1332(d)(3) (2011).

[21] 28 U.S.C. § 1332(d)(4)(B) (2011).

[22] 28 U.S.C. § 1332(d)(4)(A) (2011).

[23] 28 U.S.C. § 1332(d)(3) (2011).

[24] Id.

[25] See, e.g., Marquez v. GNS & Assocs., 2017 U.S. Dist. LEXIS 101211, at *15 (S.D. Ala. June 27, 2017) (explaining that the 28 U.S.C. § 1445(c) removal bar for claims arising under worker’s compensation applies with CAFA because the CAFA removal statute, § 1453, “does not cite § 1445(c), reference § 1445(c)’s subject matter as being repealed, or contain a general repealing clause.”); see also Yalley v. Liberty Life Assur. Co., 2017 U.S. Dist. LEXIS 117217, *5-6 (N.D. Cal. 2017) (holding that the 28 U.S.C. §1445(c) removal bar for claims arising under worker’s compensation applies with CAFA because § 1445(c) is the more specific statute and is not therefore “implicitly controlled by CAFA’s general statement of jurisdiction or of the process for removal”).

[26] Passarella v. Ginn Co., 637 F. Supp. 2d 352, 355 (D.S.C. 2009).

[27] Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345, 1348-49 (2013).

[28] Compare Freeman v. Blue Ridge Paper Prods., Inc., 551 F.3d 405, 407-09 (6th Cir. 2008) (“Our holding is limited to the situation where there is no colorable basis for dividing up the sought-for retrospective relief into separate time periods, other than to frustrate CAFA. . . . But where recovery is expanded, rather than limited, by virtue of splintering of lawsuits for no colorable reason, the total of such identical splintered lawsuits may be aggregated.”) with Marple v. T-Mobile Central LLC, 639 F.3d 1109, 1110-11 (8th Cir. 2011) (“In light of the CAFA's detailed instructions for determining jurisdiction and aggregating class member claims within a class action, we think Congress would have similarly outlined how courts should aggregate between class actions had it intended for courts to do so.”).

[29] See, e.g., Boaz Legacy, L.P. v. Roberts, 628 F. App’x 318, 320 (5th Cir. 2016) (per curiam); Bell v. City of Kellogg, 922 F.2d 1418, 1425 (9th Cir. 1991); Maine Ass’n of Interdependent Neighborhoods v. Comm’r, Maine Dep’t of Human Servs., 876 F.2d 1051, 1054-55 (1st Cir. 1989). In some instances, courts assert that the futility exception has been overruled, however this often appears in dicta and should be approached with caution. For example, some courts have said that Int'l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72 (1991) overruled the futility exception, but this is not entirely correct. The Court in Int’l Primate explained that “uncertainties . . . preclude a finding that a remand would be futile” because “[w]hether NIH is correct in arguing that either it or one of its officers will be deemed an indispensable party in state court turns on a question of Louisiana law, and we decline to speculate on the proper result.” Id. at 89. Although the Court reflects a preference for a literal reading of § 1447(c), the basis of its holding that remand is appropriate on the fact that state law would determine the outcome. Id.

[30] E.g., Hill v. Vanderbilt Capital Advisors, LLC, 702 F.3d 1220, 1225-26 (10th Cir. 2012); Coyne v. Am. Tobacco Co., 183 F.3d 488, 496-97 (6th Cir. 1999); Univ. of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 410-11 (11th Cir. 1999); Bromwell v. Michigan Mut. Ins. Co., 115 F.3d 208, 213 (3d Cir. 1997); Roach v. West Virginia Reg'l Jail & Correctional Facility Auth., 74 F.3d 46, 49 (4th Cir.1996); Smith v. Wisconsin Dep't of Agriculture, 23 F.3d 1134, 1139 (7th Cir. 1994). Confusion lies here, again, with Int’l Primate, as discussed. A lot of these cases rest upon Int’l Primate, but the holding in that case was based on the fact that remand was not, in fact, futile. See supra, note 29. It can be argued that the Court’s assertion that the futility exception is not viable, if this assertion can even be said to exist, appears in dicta.

[31] 28 U.S.C. §§ 1453(c) (2011); 28 U.S.C. 1447(d) (2011).

[32] 28 U.S.C. § 1453(b) (2011).

Kentucky - Legal Animal Abuse Or Weak Protection Laws?

Kentucky - Legal Animal Abuse Or Weak Protection Laws?

Article | 106 KY. L. J. ONLINE | May 8, 2018

Gabrielle J. Fulton[1]

“Mankind’s true moral test, its fundamental test (which lies deeply buried from view), consists of its attitude towards those who are at its mercy: animals.”[2]

I. Introduction: A Slap on the Wrist

Imagine discovering a critically mangled, grossly underweight eight-month-old dog on the side of the road. Envision the dog with multiple gunshot wounds to the face, left in this condition to die an excruciatingly tortuous death over six–seven days. This was the case with Lad, a border collie from Daviess County, Kentucky.[3] Lad was shot in the mouth several times before finally running away from home.[4] By the time he was found, approximately one week after he was intentionally mutilated, a massive infection had set in and most of his lower jaw had to be removed.[5] After a grueling four-month recovery battle, Lad passed away.[6] Matthew Wade Beauchamp, Lad’s owner, was charged with felony torture of a dog.[7] However, a few days before Beauchamp’s trial was to begin, the Commonwealth’s Attorney for Daviess County accepted a plea agreement.[8]The prosecution did not believe they could secure a conviction in Beauchamp’s trial due to Kentucky’s problematic felony torture statute, Ky. Rev. Stat. Ann. § 525.135, which defines “torture” as “the intentional infliction of or subjection to extreme physical pain or injury, motivated by an intent to increase or prolong the pain of the animal.”[9] Kentucky prosecutors have highlighted the weakness of the statute because a conviction of torture should be attainable whenever an animal is subjected to extreme physical pain, injury, and suffering regardless of whether it was “motivated by an intent to increase or prolong the pain of the animal”.[10] Matthew Beauchamp was responsible for the inhumane and unimaginable death of Lad and walked away with no jail time.[11]Unfortunately, this is a common occurrence in Kentucky. In another example, Larry Browning was charged with animal cruelty after forty-nine horses were found deceased on his property in Pendleton County.[12] Like Beauchamp, Browning walked away with no jail time.[13]  In addition, the plea agreement raised doubt as to the effectiveness in preventing Browning from having other horses in his possession.[14] These are just two examples of the inadequate protections afforded to the animals of Kentucky. Not surprisingly, for the eleventh year in a row, Kentucky has ranked last in the Animal Legal Defense Fund’s (ALDF) Animal Protection Laws Rankings.[15]This Note begins by recognizing the incongruence between society’s declarations and commitment for its animals versus its actual treatment of animals. Section two addresses the need to shift towards more humane standards and examines the reasons animals receive abysmal protections in the legal system. Section two also addresses the need to recognize animals as more than mere “property” and explores the correlation between animal cruelty and human violence. Section three identifies Kentucky as having the weakest animal protection laws in the nation. Section three also introduces the ALDF’s annual study. It compares and contrasts Kentucky’s animal protection statutes with those of Illinois (the state with the highest ranking in the ALDF’s study for the past decade). Section three outlines Illinois’ definitions and standards of care for animals, its felony provisions, and its broad enforcement authority as compared to those of Kentucky. Section four seeks to ascertain the causes for the harsh treatment of animals in Kentucky. This Section addresses the state’s legislative processes and procedures and explores how local governments may be sending the message that animal protection is unimportant in Kentucky. Finally, in Section five, this Note pleads for change in Kentucky’s laws to improve overall animal welfare by strengthening current laws.

II. Shifting Society’s Perception of Animal Protection

Americans love their animals. A majority of households contain at least one animal.[16] Recent surveys demonstrate that 68 percent of United States households own a pet, equivalent to 84.6 million homes.[17] In 2016, Americans spent an estimated $66.75 billion dollars on their pets.[18] One poll found that half of all American pet owners consider their pets as much a part of the family as any person in the household.[19] In 2011, 51% of those polled said that they purchase holiday gifts for their pet, a relatively stable number.[20]We live in a society that appears to care deeply about animal welfare. However, our society’s actual treatment of animals often stands in stark contrast to its declarations about our regard for their ethical status. As one scholar states, “[c]ruelty is incompatible with a caring, moral society where empathy is a venerable quality.”[21] Nonetheless, society has the potential to better animals’ lives by enacting and enforcing higher standards for them.[22]

II.A.  Animals as Mere Property

One of the biggest hurdles in protecting animals in the legal system is that they have historically been considered personal property under the law.[23] Animals are viewed as commodities that we own and have no value other than that which we, as property owners, assign to them.[24] This means, among other things, that laws do not recognize an animal as a victim to a crime, and thus an animal’s suffering or harm is not seen as being compensable.Regarding domestic animals, a person may have “as absolute a dominion and property as over any other useful and valuable chattel.”[25] With respect to wild animals, property may be acquired by possession of the animal or by ownership of the land on which the animal is found.[26] Thus, the property status of animals renders any balancing required under the humane treatment principle or animal welfare laws useless, because what is really being balanced are property owners’ interests against the interests of their animal property.[27]  This balance will rarely, if ever, end in the animal’s favor.[28]Gary Francione, a distinguished animal theorist, states that “[b]ecause animals are merely property, we are generally permitted to ignore their interests and to inflict the most horrendous pain and suffering or death on them when it is economically beneficial to us.”[29] For example, in Kentucky, it is legal and considered humane to terminate a dog’s life by gunshot to the head. In Ammon v. Welty, the Ammons inhabited sixty-three acres of farmland, where they let their pet dog, Hair Bear, roam the property without restraint.[30]An annoyed neighbor picked up Hair Bear and delivered him to the county dog warden, where Hair Bear was shot and killed.[31] The warden testified he routinely destroyed impounded dogs by shooting them in the head.[32] While the Ammons argued that Hair Bear was valued as a beloved and devoted pet, the court held that Hair Bear had no market value.[33] In its holding, the court stated, “[t]he affection an owner has for, and receives from, a beloved dog is undeniable. It remains, however, that a dog is property, not a family member.”[34] Additionally, the court stated that “[a]lthough dogs are considered property, the protection afforded them under the law is uniquely limited.”[35]Modern courts recognize that personal pets generally do not fit within the traditional property law principles.[36] A pet fits somewhere between a person and a piece of personal property.[37] For decades, animal activists have tried to chip away at this property status as a means of attaining some kind of rights for animals.[38] It is up to legislatures to prescribe regulations abridging the recognition of animals as mere property. Recognizing animals as more than mere property and providing more protections to animals would not only benefit animals, but would promote a more caring, less violent society.

II.B. Link Between Animal Abuse and Human Violence

Several studies demonstrate enhanced animal protection laws could significantly impact society by decreasing human violence. As one scholar states, “[t]he [l]ink between violence to human and animal victims is undeniable.”[39] Cruelty to animals has been associated directly or indirectly with violent crime, including sexual homicide, homicide, and rape..[40]  Large numbers of violent criminals begin as animal abusers.[41] One study showed that 75% of prison inmates charged with violent crimes had an early record of animal cruelty.[42] Additionally, adults who abuse animals commonly abuse their spouses and their children, as well as elderly people for whom they are caring.[43] The FBI now officially recognizes a link between animal abuse and violent crime and has begun collecting data on animal abuse.[44] John Thompson, deputy executive director of the National Sheriffs’ Association states, that “[i]f somebody is harming an animal, there is a good chance they also are hurting a human.”[45] Thompson went on to say that “[i]f we see patterns of animal abuse, the odds are that something else is going on.”[46] Putting an end to animal cruelty has the potential to drastically reduce the percentage of violent crime.Anthropologist Margaret Mead once noted, “[o]ne of the most dangerous things that can happen to a child is to kill or torture an animal and get away with it.”[47] Take Andrew Golden for example. The 11-year-old ambushed and killed three kindergarten kids as well as two adults.[48] Golden trained by shooting dogs.[49] Kip Kinkle, a 15-year-old, killed both his parents and shot 24 children at his school, killing two.[50] Kinkle tortured animals as a pastime.[51] Michael Carneal, 14, killed three girls at a prayer meeting and shot five others.[52] He threw cats into bonfires.[53] Finally, Luke Woodham, 16, killed his mother and three children and shot seven more.[54] He tortured his own dog to death.[55] According to a 2014 study, 43-50% of school shooters started out by torturing animals.[56]Children are naturally born with a love for animals, but factors in the home environment play a major role in creating violent individuals.[57] Domestic violence has been found to be closely associated with animal cruelty.[58] As Dr. Harold Hovel notes in his article about animal abuse and human violence, “[d]omestic violence is the breeding ground for future violent and non-violent crimes.”[59] Astonishingly, the connection between child abuse and animal abuse is 70-80%.[60] Children that have been exposed to domestic violence at a young age are seven to nine times more likely to participate in animal cruelty, and are also more likely to abuse their own children in the future.[61] Not surprisingly, some states have implemented statutes increasing penalties for abuse committed in front of a minor. [62]As studies have repeatedly shown, children exposed to domestic violence resort to animal cruelty as an easy way of “getting back at the world.”[63] Animal cruelty is one of the first reactions they have to their abuse experience.[64] Fighting animal cruelty can save many lives, prevent human and animal suffering, help protect children and elders from domestic violence, and lead to far less human violence overall.[65]

III. The Pinnacle of Animal Protection

On January 17, 2015, in Frankfort, Kentucky, multiple children were arrested for animal cruelty after a video surfaced of the suspects forcefully kicking an aged Italian Greyhound named Opal.[66] One viewer watched, was appalled, and stated, “I mean, she went up in the air and just come [sic] down and . . . . just her little legs.”[67] Opal, who was nearly sixteen years at the time, did not offer a growl, bark, or even a sniff.[68] In fact, she was loved by the community, and was known not to have a mean bone in her body.[69] When Susan Malcomb watched the video online, she was disturbed by the joy she saw in the kids’ faces as they continued to brutally kick Opal.[70] Although Franklin County Sheriff Pat Melton has announced that the juveniles in the video will be charged, he urged citizens who were outraged to use their passion and encourage Kentucky lawmakers to enact more effective animal cruelty laws.[71]. For Susan Malcomb, and others like her, the lack of swift prosecution is only the beginning of the systematic disappointment that she will experience. In the unlikely event the children are even convicted of animal cruelty, Kentucky’s appropriate criminal charge, the maximum penalty they will face is “one (1) year in jail and/or a fine not exceeding $500” as a Class A misdemeanor.[72]

Though the country as a whole could benefit from enhanced animal protection laws, the state of Kentucky arguably needs the most work in fostering animal welfare.  According to a recent study conducted by the ALDF, Kentucky ranks last out of the 50 states for its animal protection laws, for the eleventh year in a row.[73] Kentucky’s sentencing policies and statutes reflect its deficiency as the worst ranked state for animal protection law. In response to the Frankfort incident, Sheriff Milton proclaimed, “I know we just ranked 50th in the nation with some of the worst animal cruelty laws. Let’s use our passion and harness all the energy we’ve mustered for this and use it to change laws and make it easier to investigate and prosecute.”[74]In order to devise its annual report, the ALDF comprehensively surveys animal protection laws of the Unites States and territories.[75] The report assesses the strength of each jurisdiction’s animal protection laws and assigns a score based on fifteen different categories of animal protection.[76] These categories include: general prohibitions, penalties, exemptions, mental health evaluations and counseling, protective orders, cost mitigation and recovery, seizure/impoundment, forfeiture and post-conviction possession, non-animal agency reporting of suspected animal cruelty, veterinarian reporting of suspected animal cruelty, law enforcement policies, sexual assault, fighting, offender registration, and “ag gag[77]” legislation.[78]For the past eleven years, ALDF has ranked Kentucky last out of the 50 states for its animal protection laws.[79] This is for a number of reasons, including:

• Kentucky’s only felony provisions are for cruelty and fighting, both against only select animals[80];

• Kentucky does not have any felony provisions for neglect or abandonment[81];

• the state’s animal protection statutes contain inadequate definitions and standards of basic care[82];

• there are no increased penalties when abuse is committed in the presence of a minor or involves multiple animals[83];

• Kentucky does not require mental health evaluations or counseling for offenders[84];

• there is no statutory authority to allow protective orders to include animals[85];

• there is no cost mitigation or recovery provisions for impounded animals and there is no court ordered forfeiture provisions[86];

• there are no restrictions on future ownership or possession of animals following a conviction[87];

• there are no provisions for select non-animal-related agencies/professions to report suspected animal abuse[88];

• veterinarians are prohibited from reporting suspected cruelty or fighting[89]; humane officers lack broad law enforcement authority[90];

• there are no provisions for sexual assault;[91] and

• there are inadequate animal fighting provisions.[92]

Illinois, in contrast, has earned the highest ranking in ALDF’s report for ten consecutive years.[93] Though the state still has room for improvement, Illinois’ animals are protected by a full range of statutory protections, including, but not limited to: numerous felony provisions, increased penalties for repeat abusers, and mandatory health (psychiatric) evaluations.[94] Illinois’ Humane Care for Animals Act (the “Act”) is found in Chapter 510, Act 70 of I.L.C.S.[95] In identifying the weakness, loopholes and other shortfalls of the animal protection laws in Kentucky, one need look no further than their close neighbor Illinois to compare.

III.A.1 Illinois Statutes Provide Adequate Definitions/Standards of Care

One strength of Illinois’ animal protection laws is the definitions and standards of care implemented in the Act.[96] Further, Illinois’ anti-animal cruelty laws provide protection for all animals, not just companion animals, such as cats and dogs.  An “animal” is defined as “every living creature, domestic or wild, but does not include man.”[97] The Act goes on to define owner’s duties in 510 Ill. Comp. Stat.  Ann. 70/3 and mandates each owner provide for his animals sufficient, good quality, wholesome food and water; adequate shelter and protection from the weather; veterinary care and humane care and treatment.[98]  Section three goes on further to define the proper tethering of a dog outdoors.[99]Additionally, the Act goes on to define humane euthanasia[100], proper disposition of seized animals[101], cruel treatment[102], aggravated cruelty[103], animal torture[104], and many other aspects of animal cruelty. Providing clear definitions and standards of care supports the backbone of the animal protection laws in Illinois, however, the state takes the protections of animals even further.

III.A.2 Illinois Contains Numerous Felony Provisions for Animal Cruelty

Another reason Illinois ranks so highly in ALDF’s rankings is the state’s multitude of felony provisions available for offenders.[105] The Act contains felony provisions for cruelty, neglect, fighting, abandonment, and sexual assault.[106]  It also contains increased penalties for offenders with prior convictions of animal abuse or animal hoarding.[107] The prohibitions are not limited to select species but apply to “every living creature, domestic or wild.”[108] The Act also includes provisions for psychological counseling, and even mandates it on certain occasions.[109]The requisite anti-cruelty provisions are listed at 510 Ill. Comp. Stat. Ann. 70/3.01, 3.02, and 3.03. Under Section 3.0 of the Act, a person convicted of aggravated cruelty is guilty of a Class 4 felony.[110] A second or subsequent violation is a Class 3 felony.[111] Under Section 3.03, a person convicted of animal torture is guilty of a Class 3 felony.[112] Finally, a person who uses an animal in entertainment in violation of certain subsections of 70/4.01 is guilty of a Class 4 felony for the first offense, with subsequent offenses being a Class 3 felony.[113]Although it is not part of the Act, 720 Ill. Comp. Stat. Ann. 5/12-35 makes sexual conduct or sexual contact with an animal guilty of a Class 4 felony.[114] If the offender violates this section in the presence of a person under 18 years old or causes the animal to suffer serious physical injury or death, the offender is guilty of a Class 3 felony.[115] In addition, the court is permitted to order the defendant not to reside in any household where animals are present, forfeit all animals, and undergo a psychological evaluation or counseling.[116]Though a first offense for cruel treatment under Section 3.01 of the Act is a misdemeanor, courts take first offender violations seriously. For example, in People v. Thornton, the defendant was convicted under Section 3.01 as a first offense and sentenced to ten days incarceration, two years probation, 200 hours of community service, and restitution totaling $3,572.83.[117]Under Illinois law, an offender who is found guilty of a misdemeanor on multiple occasions often faces enhanced punishment and may even be guilty of a felony for subsequent violations.[118] For example, a first offense under Section 3.01 is a misdemeanor, however a second or subsequent conviction of cruel treatment to an animal rises to a Class 4 felony.[119] Additionally, upon conviction for violating this Section and many others, the court may order a psychological or psychiatric evaluation and is even required to do so if the offender is a juvenile or a companion animal hoarder.[120] Under Section 4, no person may sell, barter, or give away any rabbit, baby chick, duckling or other fowl which has been subject to artificial coloring.[121] Baby chicks or ducklings may not be sold, given away as pets or novelties, or awarded as prizes.[122] “A person convicted under this Section is guilty of a Class B misdemeanor”; however, “[a] second or subsequent violation is a Class 4 felony, with every day that a violation continues constituting a separate offense.”[123] The repeat offender provisions in the Illinois serve as a deterrent to future abuses.One of Illinois’ many strengths in its animal protection laws include its numerous options of felony provisions. Additionally, Illinois statutes are strong because they contain provisions enhancing the charges for repeat offenders, give courts the option, and sometimes require, psychological counseling for offenders. It is also important that the law is inclusive of prohibitions to all animals, not just companion animals. These are just a few examples of why Illinois ranks so highly with regard to its animal protection laws.

III.A.3 Illinois Has Broad Enforcement Authority

Illinois statutes provide for broad enforcement and wide-ranging authority to protect its animals. For example, law enforcement officials, state’s attorneys, and animal control officials all have the authority to investigate humane care allegations.[124] Pursuant to 510 Ill. Comp. Stat. Ann. 70/10:Upon receiving a complaint of a suspected violation of this Act, a Department investigator, any law enforcement official, or an approved humane investigator may, for the purpose of investigating the allegations of the complaint, enter during normal business hours upon any premises where the animal or animals described in the complaint are housed or kept, provided such entry shall not be made into any building which is a person’s residence, except by search warrant or court order.[125]Common complaints under this section may include violations for owner’s duties, animal hoarding, cruel treatment, aggravated cruelty, animal torture, confinement in motor vehicle, and depiction of animal cruelty.[126] Any law enforcement officer making an arrest under Sections 3.01–3.03 may lawfully take possession of some or all of the companion animals in the possession of the offender.[127] Additionally, an officer may order security for companion animals and animals used for fighting purposes.[128]An example of an officer’s broad authority is found in Thornton. In that case, officers responded to complaints of a dog that had been barking continuously inside of an apartment for several days.[129] The apartment manager informed the police that she had been inside the apartment, where she found a dog inside of a cage so small that the dog could not stand up.[130] She stated that the bottom of the cage was covered in urine and feces, there was no sign of food or water, the dog was very thin, had blood on its paws, and was shaking and continuously making whimpering and yelping sounds.[131]Based on this information, the officers immediately entered the defendant’s apartment to “check on the well being of the dog.”[132] The defendant argued that the officers unlawfully entered his apartment without a warrant.[133] The defendant argued that Section 10 of the Act specifically prohibits entry into a resident without a warrant to investigate a complaint regarding animal cruelty.[134] The court held that the police were justified in entering the apartment without a warrant because of an emergency regarding the condition of the dog.[135] The court stated that the language in Section 10 of the Act, which states that “entry shall not be made into any building which is a person’s residence, except by search warrant or court order,” is “plainly intended to make it clear that the extraordinary exception to the general warrant requirement for investigatory searches of nonresidential premises set out in Section 10 does not extend to residential premises.”[136] The court found nothing in Section 10, which suggests “that this language means that the few specifically established and well-delineated exceptions to the general warrant requirement for entry into residential premises are not applicable under the Act.”[137]In addition, the court found that the emergency exception of the Fourth Amendment’s prohibition against unreasonable searches and seizures applies to situations involving the mistreatment of animals.[138] The court held that:In this case, the totality of the circumstances known to the officers at the time of their entry into defendant's apartment was sufficient for the officers to reasonably believe that an emergency was at hand which required their immediate assistance. The tenant in the apartment above defendant's apartment told the officers that a dog had been yelping in defendant's apartment continuously for two or three days. Efforts by Nissen, the manager of the apartment complex, to contact defendant were unsuccessful. Thus, the officers knew that the yelping had persisted for several days, but did not know when, or if defendant might return to his apartment to tend to the distressed animal.[139]Another capacity in which law enforcement is delegated broad authority to act on animal cruelty is found under Section 7.1 of the Act. Under that Section, an animal control officer, law enforcement officer, or investigator who has probable cause to believe that any animal has been unlawfully confined in a motor vehicle has the authority to enter the vehicle by “any reasonable means under the circumstances after making a reasonable effort to locate the owner or other person responsible.”[140] Section 7.1 therefore is important because it allows officers to rescue animals who are trapped within automobiles.

III.B. The Worst of the Worst – Kentucky

As previously mentioned, Kentucky’s deficiency in statutes and sentencing policies reflect its bottom-tier ranking in the ALDF’s annual study. Kentucky’s animal protection statutes are contained in Chapter 525 of the Kentucky Revised Statutes. Astonishingly, Chapter 525 is titled: “Riot, Disorderly Conduct, and Related Offenses.”[141] Chapter 525 includes offenses such as loitering, public intoxication, and unlawful assembly [142] The chapter associates the highest form of animal cruelty with “riot, disorderly conduct, and related offenses” as if animal cruelty in its highest form is simply disorderly conduct.

III.B.1 Kentucky Lacks Adequate Definitions/Standards of Care

Kentucky’s statutes require clearer definitions and currently fail to address the most basic aspects of animal suffering.[143] For example, Ky. Rev. Stat. Ann. § 525.125 fails to include an express requirement that “shelter” must be provided for an animal.[144] Although failure to provide adequate shelter in extreme temperatures might result in a charge of “cruel neglect,” the case would be more difficult to prove.[145] Additionally, it is imperative that “shelter” in cold weather is defined as to allow the animal to maintain its natural body temperature.[146] In contrast, while the Illinois statute does not contain a fixed definition for “shelter,” 510 Ill. Comp. Stat. Ann. 70/3 provides that shelter must be adequate to protect the animal from weather conditions.[147] Because Kentucky law lacks basic care definitions, many counties have trouble prosecuting things as simple as the need to provide shelter for an animal.[148]“Animal”, as defined under Ky. Rev. Stat. Ann. § 446.010, includes “every warm-blooded living creature except a human being.”[149] This definition leaves cold-blooded animals, such as reptiles, fish and amphibians completely unprotected. In November 2016, Lexington-Fayette Animal Care & Control (LFACC) worked on a case in which the owners of six snakes moved out and abandoned their pets inside the home.[150] When LFACC investigated the premises, only four of the snakes were found alive.[151] They were underweight and emaciated, had no water or heat source, and had all suffered from upper respiratory infections and mouth rot.[152] LFACC was unable to bring charges against the previous owners of the snakes due to Ky. Rev. Stat. Ann. § 446.010’s failure to identify reptiles as “animals.”[153]

III.B.2 Kentucky Lacks Adequate Felony Provisions

Kentucky limits felony penalties to cruelty and neglect in very exclusive circumstances. Penalties are further limited to specific species of animals.[154] Any act of cruelty or abuse against an animal (with the exception of dog fighting and torture of a cat or dog resulting in serious physical injury or death), no matter how extreme, is a misdemeanor and cannot rise to the level of a felony until a subsequent offense is committed.[155] Under Ky. Rev. Stat. Ann. § 525.125, cruelty to animals in the first degree is a Class D felony.[156] However, this section is severely restricted and only applies “whenever a dog is knowingly caused to fight for pleasure or profit” or when “any person who knowingly owns, possesses, keeps, trains, sells, or otherwise transfers a dog for the purpose of dog fighting.”[157] In other words, this provision relates to only dogs and excludes all other animal fighting. Kentucky’s torture statute is similarly restrictive. Torture of only a dog or cat is simply a misdemeanor and only rises to a Class D felony for subsequent offenses if “the dog or cat suffers physical injury as a result of the torture” or “if the dog or cat suffers serious physical injury or death as a result of the torture.”[158]Cruelty to any animal other than a dog or cat is just a misdemeanor in Kentucky. A person is guilty of animal cruelty in the second degree if he or she intentionally or wantonly subjects an animal to mistreatment through abandonment; participates in causing it to fight for pleasure or profit; mutilates, beats, tortures an animal other than a dog or cat;[159] torments, fails to provide adequate food, drink, space, or health care; or kills any animal other than a domestic animal killed by poisoning.[160] The maximum sentence for cruelty to animals in the second degree is a mere twelve months in jail, and fines do not exceed $500.[161] Torture of a dog or cat is a Class A misdemeanor for first offenders and a Class D felony for each subsequence offense if the dog or cat suffers physical injury as a result of the torture, and a Class D felony if the dog or cat suffers serious physical injury or death as a result of the torture.[162]Furthermore, offenders of animal cruelty laws face minimal punishment in Kentucky. For example, in United States v. Chamness, nine dogs died as a result of being abandoned in severely uninhabitable living conditions provided by the defendant.[163] The carcasses of the dogs were found in various states of decomposition at the defendant’s residence.[164] Four of the dogs’ remains were found sealed inside of a storage container containing air holes in the lid to facilitate breathing.[165] Because of Kentucky’s limited felony provision, the defendant did not face a single felony charge for any of the cold-hearted, inhumane deaths.[166] The defendant was found guilty of nine counts of cruelty to animals in the second degree.[167] However, the judge imposed a sentence of merely two years probation, demonstrating the sort of minor penalties that animal abusers face in Kentucky.[168]In contrast to Kentucky’s sole felony provision, Illinois contains felony penalties for cruelty, neglect, fighting, abandonment and sexual assault.[169] Astoundingly, Kentucky is one of nine states where having sex with animals is not a crime.[170] Unless a sexually assaulted animal is physically injured, the offender cannot be adequately prosecuted.[171] Additionally, Illinois’ principal statutory protections apply to most animals, compared to Kentucky’s felony provision confined to solely dog fighting.[172] Illinois is not the only state with superior felony provisions. Oregon, Maine, California and Rhode Island, ALDF’s top ranking states, all contain principal protections applying to most animals.[173] Kentucky should take note of these exceptional provisions, as Kentucky’s felony provisions are only available for cruelty and fighting, both against only select animals.[174]

            III.B.3 Kentucky’s Humane Officers Lack Broad Enforcement Authority

Pursuant to Ky. Rev. Stat. Ann. § 436.605, only animal control officers and agents of humane societies maintain the powers of peace officers, except for the power of arrest, “for the purpose of enforcing the provisions of the Kentucky Revised States relating to cruelty, mistreatment, or torture of animals, provided they possess the qualifications required under KRS 61.300.”[175] This statute provides that when an animal control officer or agent believes an act of cruelty, mistreatment, or torture of animals is being committed, after the officer makes an oath of such belief, the judge shall issue a search warrant to search the premises.[176] Pursuant to the statute, “[i]f an animal control officer or an officer or agent of a society or association for the prevention of cruelty to animals finds that an act of cruelty, mistreatment, or torture of animals is being perpetrated, the officer or agent shall summon a peace officer to arrest the offender or offenders and bring them before the court for trial.”[177]Moreover, many states place a statutory duty on veterinarians to report suspected cruelty.[178] Fifteen states require veterinarians to report suspected abuse.[179] Some states allow veterinarians to report suspected cruelty.[180] Twenty-seven states provide immunity to veterinarians who report suspected animal abuse.[181] However, in Kentucky, veterinarians are prohibited from the voluntary reporting of suspected animal cruelty or fighting without a waiver from the client, court order, or subpoena.[182] Thus, a veterinarian is essentially required to be complicit in acts of animal abuse or neglect unless an investigation is somehow initiated.Kentucky law contains no provisions requiring any non-animal-related agencies or professionals to report suspected animal cruelty, has insufficient humane agent provisions, and has no duty mandating peace officers to execute animal protection laws.

IV. Reasons Animals Are Unprotected In Kentucky

In order to begin the process of implementing change and enhancing the protections provided to Kentucky’s animals, one must first ascertain the reasons for the state’s inadequate laws. A number of Kentucky’s legislators and humane officers have stated that Kentucky’s legislative process and the inadequacy of local governments to dedicate resources to animal protection, among other things, significantly contribute to the state’s poor stance on animal protection laws.[183]

IV.A. Legislative Process

Animal welfare bills are extremely difficult to move through legislation.[184] An average of 5-9 years is generally required to move animal bills through legislation.[185] One reason for this is that animals are in competition with other critical human issues, which are pertinent in Kentucky.[186]Vicki Deisner, the Midwest Legislative Director for the ASPCA, believes that the poverty statistics in the state and the effort of Kentucky people to pursue better livelihoods, decent salaries and community services are the types of issues that animals are competing with.[187] Animals have an increased opportunity of protection if animal bills are connected somehow with human issues, such as domestic violence.[188] Furthermore, parts of Kentucky maintain the traditional view that animals are property to be “utilized.”[189] Some legislatures reflect these same views and may not view animals as important enough to protect beyond current laws written to protect property.[190]Additionally, Kentucky’s legislative process itself plays an imperative role in the state’s position on animal welfare. In Kentucky, the Generally Assembly meets annually.[191] In even-numbered years, sessions may not exceed sixty legislative days.[192] In odd-numbered years, session may not exceed thirty legislative days.[193] In response to House Bill 143, which was recently introduced to ban the sexual assault of a pet dog or cat, Daisy Olivo, spokesman for former House Speaker Jeff Hoover, said that although Hoover is against bestiality, he strongly believes that the short, 30-day legislative session should be reserved for “serious, economy-related bills.’”[194]The length of Kentucky’s session is short compared to other states.[195] For example, Ohio and Michigan have no limits on their session length.[196] States that have no limit on the length of their legislative session, such as Ohio and Michigan, have an ample amount of time to realize priorities.[197] These states have time to present bills and to hear out all interested parties.[198] Thirty or sixty days, in contrast, is simply not enough time to get things accomplished.Furthermore, animal welfare may be viewed as a progressive movement within the broader social sector. Lobbying groups in Kentucky have had a significant impact on animal protection legislation. Certain groups, including hunting, farming, and dog breeding groups, lobby extensively against animal welfare legislation.[199] According to some legislators, these groups fear a potential “slippery slope” if animal welfare laws are passed.[200] In other words, these groups are concerned about possible limitations on their activities. Hunting groups have opposed animal welfare bills for fear they could lead to a ban on hunting, while farmers have expressed concern they could run afoul of bestiality laws while artificially inseminating livestock.[201]Gender differences may also contribute to the lack of animal protection laws getting moved through legislation. Although the role gender plays in enacting legislation would greatly benefit from further research, it is important to note its impact. As Katie Brophy argues, “male legislators by [and] large have little interest whatsoever in animal protection issues.”[202]“Anecdotal evidence suggests that men are a harder sell when it comes to promoting awareness of animal welfare issues.”[203] Studies demonstrate that women are more sympathetic than men towards animal welfare and are less supportive of animal research.[204] Additionally, studies have shown that significantly more women than men contribute their work to animal welfare organizations and to work in animal law.[205]Because women are arguably more progressive when it comes to animal welfare issues, the number of men in the Kentucky legislature may be concerning. For example, in 2016 only 15.9% of Kentucky’s legislature consisted of women.[206] This number is down from 2015, in which 16.7% of the seats consisted of women.[207] The number of women on the Kentucky legislature has been consistently declining since 2012.[208]In improving Kentucky’s stance on animal welfare, amending the legislative process and procedures and contributing more energy to animal law is a crucial step in the progression.

IV.B. Local Governments Send Message Animal Protection is Unimportant

By failing to adequately implement and address local animal laws, local governments are also sending the message that animal welfare is not an important issue. Many animal welfare advocates agree that Kentucky’s animal shelter situation is a starting point for addressing the state’s inadequate animal protections. Over 50% of Kentucky’s animal shelters are not in compliance with animal shelter laws.[209] In one-third of Kentucky’s animal shelters, it is debatable whether or not they are even in compliance with animal cruelty laws.[210]Many local governments are unwilling to spend money on appropriate shelters. In a recent study conducted by veterinarian students from Lincoln Memorial University College of Veterinary Medicine, the students found that personnel at over 90% of Kentucky shelters identified the lack of funding from county governments to be a major problem in adequately operating shelters.[211] A number of issues arise from the lack of funding by local governments.Without proper funding, shelters are unable to provide adequate staff to manage their operations.[212] Employees lack the basic training required to adequately care for the animals.[213] Employees are unable to attend training because the cost of travel to receive training is prohibitive.[214] For these reasons, many shelters rely on volunteers or inmates to care for the animals.[215] Such lack of permanent well trained employees results in inconsistent and undependable staff to care for the animals.[216]Additionally, without adequate funding, local shelters do not have the resources to conduct research, write proposed changes, and lobby legislation. In an interview with Susan Malcomb, President of the Lexington Humane Society, Malcomb stated that if the biggest adoption agency in central Kentucky, the Lexington Humane Society, cannot free up people to lobby legislation, no one else likely has the ability to participate in legislation either.[217]The state’s animal overpopulation problem could easily be addressed with proper funding. With adequate funds, shelters could implement efficient spay and neuter programs and decrease the number of animals that wind up in shelters. Numerous studies have shown that successful spay/neuter programs result in fewer animals ending up in shelters “leading to a significant reduction in the overall cost of sheltering unwanted or stray animals and improvement in overall public health and safety.”[218]Furthermore, local governments do not provide adequate enforcement in promoting animal welfare. Most county attorneys utilize part-time positions on top of running their own private practice.[219] This essentially means that county attorneys will take care of the required business that relates to the county, and will put off matters relating to animal cruelty, investigation, or prosecution. [220]Studies show that self-regulation by counties concerning compliance with shelter laws is insufficient “and that additional enforcement provisions are necessary to ensure compliance cross [sic] the state.”[221] In order to address the statewide animal welfare issue, it is imperative that counties address animal welfare issues. By not taking animal welfare issues seriously, local governments are sending the message that animal protection laws are insignificant and unimportant. If local county governments are unwilling to implement adequate animal welfare regulations, then trying to effect change on a statewide level is virtually impossible.[222]

V. Conclusion: A Slippery Slope

Recognition of the correlation between animal abuse and the resulting tendency for disregarding human suffering must be recognized in Kentucky. A failure of laws to protect animals from abuse and neglect allows this depraved behavior to go unchecked.  As previously mentioned, there is a distinct correlation between those who abuse animals and those who pose a threat to other humans. Punishing animal offenders protects humans from violence. In order to catch up to society’s values, Kentucky must provide more adequate protections to animals. The top tier states in ALDF’s rankings, among others, have felony provisions for cruelty, neglect, fighting, sexual assault, and abandonment, while Kentucky law contains only a single animal abuse felony for dog fighting.[223]In the rare circumstance an offender is convicted, Kentucky courts are not required to seize the animal from the abuser.[224] Courts are not required to restrict future ownership of animals after a conviction.[225] Moreover, courts do not mandate mental health evaluations for animal abusers.[226] In contrast to Kentucky, Illinois’ animal cruelty statute allows courts to order a convicted person to forfeit the animal.[227] A court may also order that the convicted person not own any other animals for a reasonable period of time.[228] Other Illinois statutes provide that courts may order convicted persons to undergo psychological or psychiatrist evaluations.[229] Illinois’ torture statute mandates such evaluations.[230]The top ranked states’ statutes in ALDF’s study provide for adequate definitions and standards of care, higher penalties for repeat abusers, forfeiture of abused animals, mandatory reporting of suspected cruelty, and many more provisions that Kentucky lacks. Kentucky does not have any felony provisions for neglect or abandonment. Kentucky’s statutes contain inadequate definitions and standards of basic care.[231] Kentucky has no law that increases penalties when abuse is committed in the presence of a minor or involves multiple animals.[232] Kentucky law does not require mental health evaluations or counseling for offenders. [233]There is no statutory authority to allow protective orders to include animals.[234] There are no cost mitigation or recovery provisions for impounded animals.[235] Court-ordered forfeiture provisions are limited to certain species. [236]There are no restrictions on future ownership or possession of animals following an offender’s conviction.[237] There are no provisions granting agencies/professions immunity from reported suspected animal abuse, and in fact veterinarians are prohibited from reporting suspected animal cruelty.[238] Finally, humane officers lack broad law enforcement authority.[239]Kentucky’s current statutory stance on animal protection is unacceptable. The state’s animal protection laws could be strengthened by increasing available felony provisions, providing adequate definitions of standards of care, allow veterinarians and other professions to report suspected animal abuse, mandating mental health evaluations for offenders, among many other statutory implementations.Kentucky’s legislature must work to reverse the recognition of animals as mere property. In doing so, the legislature should take animal issues more seriously. More diversity should be encouraged in the legislature and women should be not only supported, but encouraged to take an active role in the political process. Local county governments must address inadequate shelters and provide proper funding. Spay/neuter funding could decrease the number of unwanted animals who end up in shelters, or on the streets posing a risk to public health and safety.  Kentucky must improve local county governments and their policies toward animal welfare. In order for the state to improve as a whole, it is imperative that local governments begin enhancing their regulations, otherwise change will not transpire.Kentucky has a long way to go in improving its ranking as the worst state for animal protection laws. Because of the state’s “glaring lack of adequate animal protection laws, the Bluegrass State has had the unenviable distinction as ‘best state in the country to be an animal abuser’ for [ten] years in a row.”[240] As of now, Kentucky’s laws make it difficult to seek justice. The good news is, Kentucky has nowhere to go but up.[241] 

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[1] University of Kentucky College of Law, J.D. expected May 2018. I would like to thank my mom for instilling in me her love and appreciation for animals as well as Sable, Badger and Ruger for showing me the capacity animals have in showing love and appreciation for their rescuers. I would like to dedicate my note to all the animals that will never belong to a family and will have to face euthanasia while many more are bred to please a selfish society.

[2] Milan Kundera, The Unbearable Lightness of Being 289 (1999).

[3] Nina Golgowski, Collie Shot in Face in Kentucky Dies Four Months After Jaw Removed, Owner Charged, New York Daily News (Jun. 12, 2014, 4:15 PM), http://www.nydailynews.com/news/national/collie-shot-face-kentucky-dies-months-jaw-removed-owner-charged-article-1.1827553.

[4] Id.

[5] Id.

[6] Id.

[7] Source: Owner Charged in Shooting of Collie in Daviess Co., KY, 14 WFIE news (last visited Mar. 17, 2017), http://www.14news.com/story/25146393/indictment-in-shooting-of-collie-in-daviess-co-ky.

[8] Lad, The Arrow Fund: Targeting Animal Cruelty (Aug. 25, 2014), http://thearrowfund.org/lad/.

[9] Ky. Rev. Stat. Ann. § 525.135 (West 2017) (emphasis added).

[10] Interview with Kathryn Callahan, Kentucky State Director (Feb. 28, 2017).

[11] See Lad, supra note 8; Daniel Hurst, Pretrial Diversion in Kentucky, Hurst & Hurst, Attorneys at Law (Mar. 4, 2014), https://www.hurstandhurstlaw.com/pretrial-diversion-in-kentucky/.

[12] See Interview with Kathryn Callahan, supra note 10..; See ‘Worst case of animal abuse’ ends in probation, Cincinnati.com (Jan. 29, 2015), https://www.cincinnati.com/story/news/2015/01/28/pendleton-county-animal-cruelty/22483809/.

[13] Id.

[14] Id.; Sara Celi, 49 Dead Horses Found on Pendleton Co. Farm, FOX19 Now (last visited Mar. 17, 2017), http://www.fox19.com/story/25185880/breaking-dead-horses-found-in-pendleton-county.

[15] 2017 U.S. Animal Protection Laws Rankings, Animal Legal Defense Fund, http://aldf.org/wp-content/uploads/2018/01/Rankings-Report-2017_FINAL.pdf.; See also For 10th Year, KY Ranked Worst State in U.S. for Animal Protection Laws, WTVQ San Francisco, (January 12, 2017) https://www.wtvq.com/2017/01/12/10th-year-ky-ranked-worst-state-u-s-animal-protection-laws/.

[16]2017 U.S. Animal Protection Laws Rankings, Animal Legal Defense Fund, http://aldf.org/wp-content/uploads/2018/01/Rankings-Report-2017_FINAL.pdf.

[17] Pet Industry Market Size & Ownership Statistics, American Pet Products Association, http://www.americanpetproducts.org/press_industrytrends.asp (last visited Jan. 20, 2017).

[18] Id.

[19] Poll: Americans Consider Pets Part of the Family, Associated Press (updated June 23, 2009 at 10:50 AM), http://www.nbcnews.com/id/31505216/ns/health-pet_health/t/poll-americans-consider-pets-part-family/#.WHjqwbHMyu5.

[20] Sue Manning, AP-Petside.com Poll: Many Pets Can Expect Holiday Gifts From Owners; Toys and Treats Lead List of Favorites, Associated Press (Nov. 8, 2011), http://ap-gfkpoll.com/featured/holiday-gifts-topline.

[21] Dr. Harold Hovel, The Connection Between Animal Abuse and Human Violence, New York State Humane Association (2015), http://www.nyshumane.org/wp-content/uploads/2016/02/Connection_Animal_And_Human_Abuse.pdf.

[22] See Vicki Deisner, ASPCA, Presentation Regarding Regional Legislation and National Trends for Animal Welfare (2012).

[23] Penny Conly Ellison, Can Courts Consider the Interests of Animals? The Legal Intelligencer (Dec. 19, 2016), http://www.thelegalintelligencer.com/home/id=1202775104873/Can-Courts-Consider-the-Interests-of-Animals?mcode=1202615324341&curindex=0&slreturn=20170011191238.

[24] Gary L. Francione, Introduction to Animal Rights: Your Child or the Dog? xxiv (2000).

[25] 4 Am. Jur. 2d Animals § 3 (2017).

[26] Id.

[27] Francione, supra note 22.

[28] Francione, supra note 22 at xxiv-xxv.

[29] Francione, supra note 22 at xxv.

[30] Ammon v. Welty, 113 S.W.3d 185, 186 (Ky. Ct. App. 2002).

[31] Id.

[32] Id.

[33] Id. at 187.

[34] Id.

[35] Id.

[36] 4 Am. Jur. 2d Animals § 4 (2017).

[37] Id.

[38] See generally, Deisner, supra note 22.

[39] 2015 U.S. Animal Protection Laws Rankings, Animal Legal Defense Fund, http://aldf.org/wp-content/uploads/2015/12/Rankings-Report-2015.pdf.

[40] Animal Abuse and Human Abuse: Partners in Crime, PETA, https://www.peta.org/issues/companion-animal-issues/companion-animals-factsheets/animal-abuse-human-abuse-partners-crime/.

[41] Id.

[42] Belinda Abraham, When Kids Kill, LinkedIn (Sept. 26, 2017), https://www.linkedin.com/pulse/when-kids-kill-belinda-abraham/.

[43] Randall Lockwood, Making the Connection Between Animal Cruelty and Abuse and Neglect of Vulnerable Adults, The Latham Letter (2002), http://nationallinkcoalition.org/wp-content/uploads/2013/01/ElderAbuse-Lockwood-.pdf.

[44] Tracking Animal Cruelty, FBI (Feb. 1, 2016), https://www.fbi.gov/news/stories/-tracking-animal-cruelty.

[45] Id.

[46] Id.

[47] Hovel, supra note 21, at 14.

[48] Id. at 15.

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] Id. at 16.

[57] Id. at 5, 12, 14.

[58] Id. at 25-29.

[59] Id. at 20.

[60] Id. at 26.

[61] Id. at 26.

[62] Child Witnesses to Domestic Violence, Child Welfare Information Gateway, 1-2, (2016), https://www.childwelfare.gov/pubPDFs/witnessdv.pdf.

[63] Hovel, supra note 21, at 14.

[64] Id.

[65] Id. at 4.

[66] Gil Corsey, Children Charged with Animal Cruelty After Viral Video Surfaces Showing Dog Kicked in Face, WDRB (Jan. 13, 2017, 6:45 PM), http://www.wdrb.com/story/34255262/children-charged-with-animal-cruelty-after-viral-video-surfaces-showing-dog-kicked-in-face.

[67] Id.

[68] Id.

[69] Id.

[70] Telephone Interview with Susan Malcomb, President of Lexington Humane Society. (Jan. 16, 2017).

[71] See 2 Juveniles Arrested in Connection to Video Showing Dog Being Kicked, LEX18, (Jan. 13, 2017, 12:22 PM), http://www.lex18.com/story/34241472/owner-upset-after-teen-kicks-dog.

[72] Ky. Rev. Stat. Ann. § 525.130 (West 2017); Animal Cruelty Laws State by State, Stray Pet Advocacy (2003), http://www.straypetadvocacy.org/PDF/AnimalCrueltyLaws.pdf.

[73] Best and Worst States for Animal Protection Laws, 2017 Report Released, Animal Legal Defense Fund (Jan. 18, 2018), http://aldf.org/press-room/press-releases/best-worst-states-animal-protection-laws-2017-report-released/.

[74] Corsey, supra note 66.

[75]ALDF Rankings, supra note 15, at 3.

[76] Id.

[77] “Ag-gag” legislation is designed to silence whistleblowers from revealing animal abusers on industrial farms by criminalizing acts related to investigating daily activities on industrial farms, such as “recording, possession or distribution of photos, video and/or audio at a farm.” What Is Ag-Gag Legislation?, ASPCA, http://www.aspca.org/animal-cruelty/farm-animal-welfare/what-ag-gag-legislation (last visited Feb. 24, 2017).

[78] ALDF Rankings, supra note 15, at 20.

[79] ALDF Rankings, supra note 73.

[80] ALDF Rankings, supra note 15, at 19.

[81] Id.

[82] Id.

[83] Id.

[84] Id.

[85] Id.

[86] See id. at 4, 12, 19 (explaining that Kentucky has court ordered forfeiture laws for only equine).

[87] Id. at 19.

[88] Id.

[89] Id.

[90] Id.

[91] Id.

[92] Id.

[93] Best and Worst States for Animal Protection Laws, 2017 Report Released, Animal Legal Defense Fund, (Jan. 18, 2018). http://aldf.org/press-room/press-releases/best-worst-states-animal-protection-laws-2017-report-released/.

[94] Animal Legal Defense Fund, Supra note 15.

[95] 510 Ill. Comp. Stat. Ann. 70/1(West 2018).

[96] See generally 510 Ill. Comp. Stat. Ann. 70/2–2.10 (West 2018).

[97] 510 Ill. Comp. Stat. Ann. 70/2.01 (West 2018).

[98] 510 Ill. Comp. Stat.  Ann. 70/3 (West 2018).

[99] Id.

[100] 510 Ill. Comp. Stat.  Ann. 70/2.09 (West 2018).

[101] 510 Ill. Comp. Stat.  Ann. 70/3.06 (West 2018).

[102] 510 Ill. Comp. Stat.  Ann. 70/3.01 (West 2018).

[103] 510 Ill. Comp. Stat.  Ann. 70/3.02 (West 2018).

[104] 510 Ill. Comp. Stat.  Ann. 70/3.03 (West 2018).

[105] ALDF Rankings, Supra note 15, at 11.

[106] Id.

[107] Id.

[108] 510 Ill. Comp. Stat.  Ann. 70/2.01(West 2018).

[109] ALDF Rankings, Supra note 15, at 11.

[110] 510 Ill. Comp. Stat.  Ann. 70/3.02 (West 2018).

[111] Id.

[112] 510 Ill. Comp. Stat.  Ann. 70/3.03 (West 2018).

[113] 510 Ill. Comp. Stat. Ann. 70/4.01(West 2018).

[114] 510 Ill. Comp. Stat. Ann. 5/12-35 (West 2018).

[115] Id.

[116] Id.

[117] People v. Thornton, 676 N.E.2d 1024, 1026 (1997).

[118] See, e.g., 510 Ill. Comp. Stat. Ann. 70/3.01 (West 2018).

[119] Id.

[120] Id.

[121] 510 Ill. Comp. Stat. Ann. 70/4 (West 2018).

[122] Id.

[123] Id.

[124] Animal Law Awareness for Law Enforcement and Other Governmental Agencies, https://agr.state.il.us/AnimalHW/LawEnforcementTraining.pdf.

[125] 510 Ill. Comp. Stat. Ann. 70/10 (West 2018).

[126] Supra note 124.

[127] 510 Ill. Comp. Stat. Ann. 70/3.04 (West 2018).

[128] 510 Ill. Comp. Stat. Ann. 70/3.05 (West 2018).

[129] Thornton, 676 N.E.2d at 1026.

[130] Id.

[131] Id.

[132] Id. at 1027.

[133] Id.

[134] Id.

[135] Id.

[136] Id.

[137] Id. at 1027–28.

[138] Id. at 1028.

[139] Id.

[140] 510 Ill. Comp. Stat. Ann. 70/7.1 (West 2017).

[141] Ky. Rev. Stat. Ann.  T. L, Ch. 525.

[142] See id.

[143] Callahan, supra note 10.

[144] Id.; Ky. Rev. Stat. Ann. § 525.125 (West 2017).

[145] Callahan, supra note 10.

[146] Id.

[147] 510 Ill. Comp. Stat. Ann. 70/3 (LexisNexis 2017).

[148] Callahan, supra note 10.

[149] Ky. Rev. Stat. Ann. § 446.010 (LexisNexis 2017).

[150] Malcomb, supra note 70. (referencing conversation with Jai Hamilton).

[151] Id.

[152] Id.

[153] Id.; Ky. Rev. Stat. Ann. § 446.010(2) (West 2017).

[154]  Ky. Rev. Stat. Ann. § 446.010(2) (West 2017).

[155] See Ky. Rev. Stat. Ann. § 525.125 (West 2017); Ky. Rev. Stat. Ann. § 525.130 (West 2017); Ky. Rev. Stat. Ann. § 525.135 (West 2017).

[156] Ky. Rev. Stat. Ann. § 525.125 (West 2017).

[157] Id. (emphasis added).

[158] Ky. Rev. Stat. Ann. § 525.135 (West 2017).

[159] Torture of dogs and cats is covered by Ky. Rev. Stat. Ann. § 525.135 (West 2017).

[160] Ky. Rev. Stat. Ann. § 525.130 (West 2017).

[161] Ky. Rev. Stat. Ann. § 532.020 (LexisNexis 2017); Ky. Rev. Stat. Ann. § 534.040 (LexisNexis 2017).

[162] Ky. Rev. Stat. Ann. § 525.135 (West 2017).

[163] United States v. Chamness, No. 5:11-CR-00054-R, 2012 WL 3109494, at *1 (W.D. Ky. July 31, 2012).

[164] Id.

[165] Id.

[166] See id.; see Ky. Rev. Stat. Ann. § 525.125 (West 2017).

[167] .Chamness, 2012 WL 3109494, at *1.

[168] Id.

[169] ALDF Rankings, supra note 15.

[170] Andrew Wolfson, Bill would ban sex with pets, not other animals, courier-journal (Jan. 10, 2017), http://www.courier-journal.com/story/news/politics/ky-legislature/2017/01/09/bill-would-ban-sex-pets-not-other-animals/96262280/.

[171] Callahan, supra note 10.

[172] ALDF Rankings, supra note 15.

[173] Id.

[174] Id.

[175] Ky. Rev. Stat. Ann. § 436.605 (West 2017).

[176] Id.

[177] Id.

[178] Rebecca F. Wisch, Table of Veterinary Reporting Requirement and Immunity Laws, Animal Legal & Historical Center (2015), https://www.animallaw.info/topic/table-veterinary-reporting-requirement-and-immunity-laws.

[179] Dr. Marty Becker, It’s against the law for a veterinarian to report animal abuse in Kentucky,  (Nov. 20, 2014), https://www.drmartybecker.com/news/law-veterinarian-report-animal-abuse-kentucky/.

[180] Id.

[181] Id.

[182] Ky. Rev. Stat. Ann. § 321.185 (West 2017) (this is in place to protect client confidentiality).

[183] Malcomb, supra note 70.

[184] Telephone Interview withVicki Deisner, Midwest Legislative Director, ASPCA (2017, Jan. 16).

[185] Id.

[186] Id.

[187] Id.

[188] Id.

[189] Callahan, supra note 10.

[190] Id.

[191] Legislative Branch of Government, Legislative Research Commission, http://www.lrc.ky.gov/legproc/lbranch.htm (last visited Feb. 19, 2018).

[192] Id.

[193] Id.

[194] Wolfson, supra note 170.

[195] Legislative Session Length, National Conference of State Legislatures (Dec. 2, 2010), http://www.ncsl.org/research/about-state-legislatures/legislative-session-length.aspx.

[196] Id.

[197] Deisner, supra note 184.

[198] Id.

[199] Callahan, supra note 10.

[200] Id.

[201] Wolfson, supra note 170.

[202] Telephone Interview with Katie Brophy, Former President, Animal Legal Defense Fund (Jan. 17, 2017).

[203] Lukey1, Do Men Care Less About Animals Than Women?, Vancouver Sun (Nov. 24, 2010 04:23 PM), http://vancouversun.com/news/community-blogs/do-men-care-less-about-animals-than-women.

[204] Harold A. Herzog, Gender Differences in Human-Animal Interactions: A Review, Anthrozoos (Feb. 13, 2007), http://wpmedia.vancouversun.com/2010/11/gender.pdf.

[205] Claire Sterling, Is Animal Welfare “Women’s Work”?, ASPCA (Nov. 11, 2015), http://www.aspcapro.org/blog/2015/11/10/animal-welfare-womens-work.

[206] Women in State Legislatures for 2016, National Conference of State Legislatures (Sep. 20, 2016), http://www.ncsl.org/legislators-staff/legislators/womens-legislative-network/women-in-state-legislatures-for-2016.aspx.

[207] Women in State Legislatures for 2015, National Conference of State Legislatures (Sep. 4, 2015), http://www.ncsl.org/legislators-staff/legislators/womens-legislative-network/women-in-state-legislatures-for-2015.aspx.

[208] See Women in State Legislatures for 2014, National Conference of State Legislatures (Apr. 1, 2014), http://www.ncsl.org/legislators-staff/legislators/womens-legislative-network/women-in-state-legislatures-for-2014.aspx; Women in State Legislatures: 2013 Legislative Session, National Conference of State Legislatures (Nov. 8, 2013),http://www.ncsl.org/legislators-staff/legislators/womens-legislative-network/women-in-state-legislatures-for-2013.aspx; Women in State Legislatures: 2012 Legislative Session, National Conference of State Legislatures (Sep. 17, 2012), http://www.ncsl.org/legislators-staff/legislators/womens-legislative-network/women-in-state-legislatures-2012.aspx.

[209] Cynthia L. Gaskill et al., 2016 Study of Current Conditions of Kentucky County Animal Shelters and Degree of Compliance with Kentucky Animal Shelter Laws 1 (2016).

[210] Malcomb, supra note 70.

[211]Gaskill, supra note 209, at 14.

[212] Malcomb, supra note 70.

[213] Gaskill, supra note 209, at 17.

[214] Id.

[215] Id. at 19.

[216] Id.

[217] Malcomb, supra note 70.

[218] Gaskill, supra note 209, at 17.

[219] Malcomb, supra note 70.

[220] Id.

[221] Gaskill, supra note 209, at 16.

[222] Malcomb, supra note 70.

[223] ALDF Rankings, supra note 15, at 11; Ky. Rev. Stat. Ann. § 525.125 (West 2017).

[224] Kristen Kennedy, Realty Check: Why Kentucky is in the Dog House for Animal Abuse, WKYT (Feb. 08, 2012), http://www.wkyt.com/home/headlines/Kentucky_worst_in_nation_at_fighting_animal_abuse_138760019.html.

[225] Samantha D. E. Tucker, No Way to Treat Man's Best Friends: The Uncounted Injuries of Animal Cruelty Victims, 19 Animal L. 151, 158 (2012) (describing laws on owning future pets after being convicted of animal abuse).

[226] Id.

[227] 510 Ill. Comp. Stat. Ann. 70/3.04 (West 2018) (a new version of this statute is effective June 1, 2018, however it does not change the provision allowing a court to order a convicted animal abuser to forfeit their animals).

[228] Id.

[229] See 510 Ill. Comp. Stat. Ann. 70/3.01, 70/3.02 (West 2018).

[230] 510 Ill. Comp. Stat. Ann. 70/3.03 (West 2018).

[231] ALDF Rankings, supra note 15, at 11.

[232] Id. at 12.

[233] Id.

[234] Id.

[235] Id.

[236] Id.

[237] Id.

[238] Id.

[239] Id.

[240] Stephan Otto, Crime & Punishment in Kentucky, Animal Legal Defense Fund (Oct. 26, 2009), http://aldf.org/blog/crime-punishment-in-kentucky/.

[241] Malcomb, supra note 70.