The Curiously Nonrandom Assignment of Sixth Circuit Senior Judges

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The Curiously Nonrandom Assignment of Sixth Circuit Senior Judges

Online Original | 108 KY. L. J. ONLINE | Volume 108

The Curiously Nonrandom Assignment of Sixth Circuit Senior Judges

By Clark L. Hildabrand[I]

I.  Introduction

Federal judges occupy an odd position in our republic. On the one hand, these judges have an awesome responsibility to say what the law is. They enjoin presidential acts, strike down state laws, and divine the meaning of constitutional rights. On the other, our Constitution affords these legal elites life tenure, a length of service not granted either to legislators or the executive. This means that federal judges, whom the American people never elected, often will remain in office long after the president who nominated them leaves office. Strengthening the judiciary’s independence, Congress cannot reduce judicial salaries and has long declined to impeach judges when they issue unpopular decisions.

Federal judges, to be sure, tend to agree with each other in the mine run of cases.[2] But the worry remains that—at least in the most politically divisive cases—these unelected and unremovable jurists will turn into “politicians in robes.”[3] Some judges recognize that their “only source of democratic legitimacy is the perception that [they] engage in principled decision-making.”[4] The contention that certain judges do not even follow agreed-upon procedural rules challenges this perception. After all, “[p]ublic confidence in th[e] court[s] . . . is premised on the certainty that the court follows the rules in every case, regardless of the question that a particular case presents.”[5]

This Essay, therefore, examines the assignment of judges in the U.S. Court of Appeals for the Sixth Circuit to see how its assignment rules play out in practice. The first step is a review of the rules themselves. The Sixth Circuit’s history of procedural disputes—which came to a head with the publication of Judge Boggs’s Procedural Appendix in Grutter v. Bollinger[6]—and research about the nonrandomness of judicial assignment provide insight into potential weaknesses in the assignment system. Next, this Essay continues with its chief contribution: an analysis of Sixth Circuit case assignments from 2012 through 2016, a five-year period when the composition of the court remained relatively consistent. This analysis suggests that, for whatever reason, the senior judge assignment system tends to enhance the perceived partisan preferences of senior judges. In other words, senior judges nominated by Democratic presidents tend to sit with other Democratic nominees, and senior judges nominated by Republican presidents tend to sit with other Republican nominees. This preference is most pronounced among Democratic-nominated senior judges and enhances the voting strength of Democratic judges, who are a minority among the active judges on the Sixth Circuit. This Essay considers potential non-nefarious explanations for these tendencies and concludes by weighing how this dynamic will impact the Sixth Circuit as several Republican-nominated judges have taken senior status during the Trump Administration.

II.  A History of Procedural Quarrels

Contrary to what one might expect, judicial assignment on the Sixth Circuit is not random, even if the circuit clerk follows the assignment rules. Nevertheless, the circuit clerk, under the direction of the chief judge, implements various procedures that should have the effect of approximating randomness. The Sixth Circuit “sits over two-week periods scheduled so as to afford all judges at least five weeks between sittings.”[7] “The clerk prepares the calendar for a session before the composition of panels” during these two weeks “is determined.”[8] To approximate randomness, “[t]he clerk balances the calendars by dividing the cases as evenly as possible among the panels according to case type and the district of origin.”[9] There is no wheel that churns out a randomly-assigned three-judge panel for each discrete case. After the circuit clerk divides the cases into groups, the judges are “assigned to panels during the sitting weeks using an automated routine which searches the court’s database to determine which active judges have the longest intervals between sitting pairing.”[10]

While not exactly random for each individual case, this common practice “attempts to equalize co-sits” and “is the functional equivalent of taking a coin and placing it on heads once, then placing it on tails once, and so on, instead of actually tossing it. That is, the practice uses a nonrandom process to create results that are meant to be consistent with randomness.”[11]

But there is a catch. Although “[a]ll active judges are scheduled to sit four consecutive days during one of the two sitting weeks,”[12] senior judges can pick and choose which sittings they attend. To earn his pay each year, a senior judge must perform work that “in the aggregate equals at least 3 months[’] work” of an active judge.[13] Senior judges in the Sixth Circuit have the discretion to work as much or as little as they want the other three quarters of the year. One senior judge may keep an almost full caseload while another teaches a law school class and visits grandchildren.[14] In several circuits, “[t]he calendar preferences of senior judges [a]re given particular weight—a senior judge’s request to sit during a given week in a given month might be accommodated—to encourage those judges to provide as many days of service as possible.”[15] And on the Sixth Circuit, the automated assignment system assigns senior judges after active judges are already in place: “The automated program first pairs active judges based on intervals between pairings and then adds senior circuit judges and visiting judges to pairings, again determined by the longest interval between pairings with either judge in the assembled pairs.”[16]

Despite the best efforts of the assignment system, this process might produce nonrandom results if senior judges tend to sit more or less frequently during the same weeks as certain active judges. For example, a senior judge may enjoy sitting with a judge who is a former clerk or who comes from the senior judge’s own city. The senior judge could then build his sitting calendar around when his judicial friend is likely to hear cases as well.

Additional procedural quirks might add to the nonrandomness of merits case assignment. “In cases not yet assigned to a merits panel, substantive motions are assigned to randomly assembled panels drawn from among active and senior circuit judges and visiting judges designated to sit with the court.”[17] This mostly[18] random assignment system led to problems in Grutter v. Bollinger.[19] That case touched on a politically sensitive issue: affirmative action. “In August 1999,” a Sixth Circuit panel “consisting of Circuit Judges Daughtrey and Moore”—both Democratic appointees—and a visiting senior district court judge “decided an appeal concerning the rights of certain parties to intervene in the district court case underlying the [later Grutter] appeal, but did not address the merits of the case.”[20] When the cases returned to the Sixth Circuit, “a question could have arisen regarding whether these appeals, seeking review of cases already returned to the district court by a panel of this court, were ‘must panel’ cases” under 6th Cir. I.O.P. 34(b)(2).[21] This procedure allows “the original panel [to] determine to hear the appeal or whether it should be assigned to a panel at random.”[22] Under the current rules, “[w]here it is necessary to bring in a new judge to complete the panel,” such as when a panelist was a visiting judge or has retired, “the clerk will draw a name from among the active judges not already on the panel.”[23]

That is not what happened in Grutter. Instead, then-Chief Judge Martin—also a Democratic-nominated judge—decided to augment these panels “by the addition of” himself, “not a randomly chosen judge.”[24] This panel heard all further motions regarding these appeals and sat on an en banc petition, which the circuit clerk normally circulates after fourteen days to the entire court,[25] for five months.[26] During those five months, two Republican-appointed judges took senior status.[27] This delayed circulation of the en banc petition allowed the entirely Democratic-appointed panel to have the case heard before an en banc court that consisted of only three Republican-appointees, and the Democratic-appointed panel won out with a five to four en banc vote.[28] Judge Boggs, frustrated with the lack of procedural transparency, aired these dubious procedural moves by publishing a Procedural Appendix at the end of his dissent.[29] Otherwise, the public would never have learned about the procedural inconsistencies.

III.  The Parameters of the Study

This Essay, therefore, analyzes the assignment of all Sixth Circuit judges—both active and senior—in continuous service from 2012 through 2016 to query whether any procedural abnormalities are occurring behind the scenes. A previous study of all federal circuit courts from 2008 to 2012 found that the Sixth Circuit tended to pack Republican appointees onto three-Republican panels and that divided panels (consisting of both Democratic- and Republican-appointees) leaned Democratic more often than simulations would expect.[30] As former-Judge Posner explained using the opposite set of circumstances, this is what one would expect if a liberal chief judge wanted to waste Republican votes and maximize the effectiveness of Democratic votes.[31]

Although the previous analysis of all circuit courts did not produce statistically significant results for the Sixth Circuit,[32] this Essay uses an approach tailored to the Sixth Circuit. For starters, this Essay uses the political party identification of the president who initially nominated each judge as a proxy for ideology rather than the president under whose watch the judge was ultimately appointed.[33] This change reclassifies Judge White as Democratic and accurately reflects the political compromise between President George W. Bush and Senate Democrats that allowed Michigander Judges White and Kethledge to assume their seats on the Sixth Circuit.[34]

Next, this Essay uses the five years from 2012 through 2016 due to the stability of the Sixth Circuit during this timeframe. Fifteen active judges (six Democratic nominees and nine Republican nominees) and eight senior judges (four from each party) heard cases throughout the five-year period. One senior judge retired from judicial service in 2012, but she participated in only nineteen opinions that year that made their way onto Westlaw.[35] Judge Martin (the Chief Judge during Grutter) retired directly from active service in 2013 in the midst of an investigation into his travel expense reimbursements.[36] Nonetheless, his 517 cases are consistent with the findings of this Essay: active judges have a slight tendency to sit with active judges of the opposite party but a strong tendency to sit with senior judges of their own party.

That brings us to the last major deviation of this Essay from prior study. Unlike other studies, this Essay does not rely on oral argument information from calendar docket sheets.[37] Such an approach would have the weaknesses of failing to capture non-argument cases and potentially overstating the significance of a panel organized to hear arguments in a single must case.[38] Instead, this Essay looks to panel assignments in all Sixth Circuit opinions available on Westlaw.[39] This Essay determines the number of times each Sixth Circuit judge paired with another—a key consideration in the circuit’s assignment system—and then averages out the number of cases by ideological category and active/senior status. This approach accounts for random fluctuations among pairings and the fact that chief judges take a reduced caseload due to their administrative responsibilities. On the whole, Democratic active judges had about the same average cases per judge as Republican active judges: respectively, 887.17 and 891.67 cases per judge. Democratic senior judges sat a tad more frequently and accounted for 53.65% of total case assignments to Republican senior judges’ 46.35%.[40]

This approach adds a different viewpoint on case assignments but, of course, has its own weaknesses. En banc assignments count as a panel assignment for each judge on the en banc panel. This increases the number of cases for active judges across the board, however, and there appear to have been no more than twenty relevant en banc opinions during this period. Additionally, this approach might overstate the importance of cases with multiple iterations or orders or fail to include various unpublished decisions not on Westlaw. This approach, nevertheless, addresses the non-argument cases to a greater degree than an alternative docket-sheet approach. The Essay is not a comprehensive statistical study but provides insight into the most salient features of nonrandomness in Sixth Circuit case assignment.

IV.  Apparent Nonrandomness of Senior Judge Assignment

This Essay finds that active judges pair in mostly random ways even though senior judges do not. Table 1 summarizes the statistics for active judges nominated by a Democratic president.

Table 1: Active Democratic Nominee Statistics

The second column (“Total Cases”) counts every time a judge participated in an opinion. Chief Judge Cole, for example, participated in 727 opinions issued from 2012 through 2016. I then counted how many times the active judge participated in a case with each other active judge and aggregated the numbers by political party of the president nominating the other judges. Thus, Democratic active judges paired with Chief Judge Cole 362 times while Republican active judges paired with him 681 times. This averages to 72.4 pairings per other Democratic active judge (the third column) and approximately 75.667 pairings per Republican active judge (the fourth column) for Chief Judge Cole. The fifth column (“Active Judge Average Difference”) is the difference between these two averages. To finish the example, Chief Judge Cole averaged about 3.267 more pairings per Republican active judge than he averaged with other Democratic active judges.

Table 1 demonstrates that Democratic active judges tend to sit slightly more often with Republican active judges than with other Democratic active judges, which is expected given that the average Republican sits slightly more frequently than the average Democrat. Democratic active judges average only 2.63 more pairings per Republican active judge than per Democratic judge. Using a hypothesis that ideology does not impact pairings in either direction and wherep is significant when less than 0.05, a paired two-tailed t-test shows that the results are not statistically significant. The two-tailed p-value here is 0.338, well outside the realm of statistical significance.

Table 2 gives the equivalent information for active judges nominated by a Republican president but with negative active average differences showing a tendency to sit with Democratic active judges.

Table 2: Active Republican Nominee Statistics

Again, Republican active judges have the slightest of tendencies to sit with active judges of the opposite party. Out of all the pairings that result from an average of 891.67 cases per Republican active judge, a Republican active judge is likely to average only 0.69 more pairings per Democratic active judge than per other Republican active judge. If p is significant when less than 0.05, the two-tailed p-value of 0.716 is not at all statistically significant.

The assignment system thus seems to work well for assigning active judges to sit with other active judges. A couple Democratic judges (Judges Moore and Clay) and several Republican judges (Judges Batchelder, Gibbons, Sutton, and Griffin) even bucked the overall trends for their sets.[41]

The same cannot be said for senior judges. Table 3 gives the statistics for the rates at which Democratic senior judges sit with active judges, with positive numbers representing tendencies to pair with other Democratic judges.

Table 3: Senior Democratic Nominee Statistics

Democratic senior judges are far more likely to pair with Democratic active judges than with Republican active judges. This effect is consistent for all four Democratic senior judges regardless of how many cases they participated in. For example, Judge Daughtrey, the Democratic senior judge with the most sittings, averaged only 52.444 pairings per Republican active judge despite averaging 74.833 pairings per Democratic active judge. If pis significant when less than 0.05, then these pairing differences were statistically significant with a two-tailed p-value of 0.033.

Peering into the panel assignments for Judge Daughtrey even further reveals the effect of this preference on panel ideological balances.[42] Excluding two en banc cases and one evenly split must panel that Daughtrey sat on, Table 4 gives the expected and actual ideological breakdown for Judge Daughtrey’s 501 three-judge panels.[43]

Table 4: Judge Daughtrey Three-Judge Panel Statistics

Judge Daughtrey’s panels had a Democratic majority 74.85% of the time, which is roughly what we would expect if the Sixth Circuit had an even ideological balance. But Democratic nominees had a seven to nine minority among active judges until August 2013 and a six to nine minority after Judge Martin’s resignation. For Judge Daughtrey, the Sixth Circuit might as well have had at least one more active Democratic judge. Her pairings also maximized ideological sway with far more two-Democrat panels than we would expect even if the Sixth Circuit were evenly divided.

A chi-squared test for normality shows that Judge Daughtrey’s pairings were not consistent with a normal distribution. Such a test compares the actual sitting statistics with the expected sitting statistics and considers the likelihood that deviations are simply random. Here, the chi-squared p-values were 0.003159 if an even split is expected; 0.003164 compared to the 7–9 split; and 0.000003 compared to the 6–9 split. All of these p-values indicate that the pairings were not normally distributed.

Nevertheless, Judge Daughtrey’s odd pairings are not the result of, say, Chief Judge Cole assigning himself to sit with Judge Daughtrey in otherwise evenly divided panels to maximize her voting power. Since Chief Judge Cole became chief judge in August 2014 and through the end of 2018, all 45 of Chief Judge Cole and Judge Daughtrey’s non-en banc panels were three-Democrat panels. The opposite was true for other Democratic senior judges. From August 2014 through 2018, Judges Merritt (35 times), Gilman (35 times), and Keith (12 times) had a total of 82 pairings with Chief Judge Cole on three-judge panels. Three of the pairings resulted in three-Democrat panels: two of these pairings came from a single must panel case,[44] and the third pairing was from a long-running death penalty case which Chief Judge Merritt was assigned to years earlier.[45] The remaining 79 pairings with Chief Judge Cole resulted in two-Democrat panels. Chief Judge Cole finally wound up on a three-Democrat panel with a senior judge other than Judge Daughtrey in March 2019 when Judges Keith and Clay joined Chief Judge Cole to deny a stay pending appeal for Gun Owners of America, Inc.’s challenge of the bump stock ban.[46]

Part of the misbalance for Judge Daughtrey comes from her pairing only sixteen times with Judge Batchelder and three times with Judge Boggs (two of which were en banc cases and one of which was a must panel originating from a 2004 decision). Judge Batchelder paired with Judge Daughtrey fewer times than with any other senior judge even though Judge Daughtrey had the second highest case total among senior judges. Since October 2007, during the time Judge Boggs was chief judge, it appears that Judges Boggs and Daughtrey have sat together for, at most, one Westlaw decision[47] that is not an en banc, death penalty, or must panel case—each of which is a category that the Sixth Circuit assignment procedures treat separately from the normal process. This lone 2009 decision, however, was in an appeal docketed in 2006 and argued in 2007. Unless there is a fluke in the automated assignment system or a highly improbable event is occurring, it appears someone is deliberately separating Judges Boggs and Daughtrey, possibly as part of the “avoiding acrimony” approach to assignment that some circuit judges have described.[48]

All four Republican senior judges also have an affinity for ideologically similar active judges as seen in Table 5, where positives indicate a Republican lean.

Table 5: Senior Republican Nominee Statistics

Accounting for the fact that Republican senior judges sat in fewer cases overall than Democratic senior judges (401.75 average cases to 465 average cases), Republican senior judges still had a smaller average difference in ideological pairings. The Republican senior judge pairing results had a two-tailedp-value of 0.066 and thus, unlike the Democratic senior judge results, were not statistically significant if statistical significance is where p is less than 0.05. The ideological pairing trend is stronger for Democratic senior judges than for Republicans.

Nevertheless, the pairing statistics still suggest that Republican senior judges tend to sit more frequently with Republican active judges. The two-tailed t-test assesses the hypothesis that pairings do not vary by ideology in either direction. A one-tailed t-test, in contrast, looks for a correlation in one direction. In other words, a one-tailed t-test assesses the hypothesis that judges tend to pair with ideologically similar judges. With such a one-tailed t-test, the results become statistically significant and produce a p-value of 0.033.

Interestingly, the Republican senior judge with the largest sample of cases (Judge Siler) had the least random assignments among Republicans while the Republican judge with the smallest sample of cases (Judge Norris) had the most random assignments among all senior judges. This runs counter to the intuition, if case assignment is truly random, that increasing the sample size would tend to decrease variances that would create the impression of nonrandomness.

V.  Looking Ahead to the Future of the Sixth Circuit

The Sixth Circuit’s apparent nonrandom assignment of senior judges may begin to favor Democratic-nominated judges less and less. Since the conclusion of the time period analyzed in this Essay, President Trump has appointed five active judges (Judges Bush, Larsen, Nalbandian, Readler, and Murphy) to replace five Republican Sixth Circuit judges who took senior status (Judges Boggs, Batchelder, Rogers, Cook, and McKeague) and one active judge (Judge Thapar) to fill Judge Martin’s long-vacant seat. The death of senior Judge Keith, who tended to hear many cases with his former clerk Judge Clay, will further dilute the Democratic pool of judges. The effect of this transformation in the Sixth Circuit remains unseen and will depend on how often the newly senior judges choose to sit. But if the experience of 2012 through 2016 is any guide, the propensity of senior judges to sit with active judges nominated by a president of the same party might enhance the ideological influence of these Republican senior judges. Plus, Judge Daughtrey’s tendency not to sit with Judges Boggs and Batchelder will become less of a factor in strengthening Judge Daughtrey’s Democratic-pairing lean as new active judges—without any bad blood—have replaced Judges Boggs and Batchelder in the assignment process.

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[I] I would like to thank my wife for providing comments on this Essay and the editors of the Kentucky Law Journal Online for their edits. All views expressed in this Essay are my own.

[2] See, e.g., Jeffrey S. Sutton, A Review of Richard A. Posner, How Judges Think, 108 Mich. L. Rev.859, 862–66 (2010) (noting the high rate of unanimity on the circuit courts of appeals).

[3] Id. at 860.

[4] Grutter v. Bollinger, 288 F.3d 732, 753 (6th Cir. 2002) (en banc) (Moore, J., concurring).

[5] Id. at 815 (Batchelder, J., dissenting).

[6] Id.at 810–14 (Boggs, J., dissenting). For a study of the controversy created by the allegedly nonrandom assignment of liberal Fifth Circuit judges to desegregation cases, see Jonathan L. Entin, The Sign of ‘the Four’: Judicial Assignment & the Rule of Law, 68 Miss. L.J.369 (1998).

[7] 6th Cir. I.O.P. 34(a)(1).

[8] Id. I.O.P. 34(a)(2).

[9] Id. I.O.P. 34(a)(3).

[10] Id. I.O.P. 34(a)(1).

[11] Mark K. Levy, Panel Assignments in the Federal Courts of Appeals, 103 Cornell L. Rev.65, 104 (2017).

[12] 6th Cir. I.O.P. 34(a)(1).

[13] 28 U.S.C. § 371(e)(3).

[14] See generally Frederic Block, Senior Status: An ‘Active’ Senior Judge Corrects Some Common Misunderstandings, 92 Cornell L. Rev. 533(2007); Albert Yoon, As You Like It: Senior Federal Judges & the Political Economy of Judicial Tenure, 2 J. Empirical Legal Stud.495 (2005).

[15] Levy, supra note 11, at 68–69.

[16] 6th Cir. I.O.P. 34(b)(1).

[17] 6th Cir. I.O.P. 27(a)(1).

[18] As with merits panels, senior judges do not have to participate each quarter of the year in the motions panel process. And active judges can sometimes take a quarter off from motions panel service, so the pool of judges for the motions panels is not consistent.

[19] 288 F.3d 732 (6th Cir. 2002) (en banc).

[20] Id. at 811 (Boggs, J., dissenting).

[21] Id.

[22] 6th Cir. I.O.P. 34(b)(2).

[23] Id. I.O.P. 34(b)(3). Senior judges also remain assigned to all subsequent proceedings in death penalty cases that they previously participated in but can elect not to receive new death penalty case assignments. Id. I.O.P. 22(b)(1).

[24] Grutter, 288 F.3d at 811 (en banc).

[25] See 6th Cir. I.O.P. 35(d)(2).

[26] Grutter, 288 F.3d at 811–13.

[27] Id. Similar motions-panel shenanigans have occurred on the Seventh Circuit. See Alison Frankel, At 7th Circuit, Unseen Judicial Mechanics Drive Decisions: New Paper,Reuters (Dec. 3, 2014), http://blogs.reuters.com/alison-frankel/2014/12/03/at-7th-circuit-unseen-judicial-mechanics-drive-decisions-new-paper/[https://perma.cc/X5DQ-2VFB] (“The merits case was not, however, randomly assigned to a new panel of appellate judges as it would be in most federal circuits. Posner, Kanne and Rovner – the same three judges who had previously dismissed Motorola’s case based just on motions briefing – opted to retain authority over Motorola’s merits appeal.”). And certain Sixth Circuit judges have misused their power to issue single-judge stays, see 6th Cir. I.O.P. 22(d), and avoided the normal merits panel process to undermine implementation of the death penalty. See Jonathan Adler, Sedley Alley’s Last-Minute Stay, Volokh Conspiracy (July 17, 2006), http://volokh.com/posts/1153144938.shtml  [https://perma.cc/MLV8-GWUB] (recounting Democratic-appointee Judge Merritt’s single-judge stay on the eve of an execution and various en banc maneuverings).

[28] Grutter, 288 F.3d at 735.

[29] Id. at 810-14 (Boggs, J., dissenting).

[30] Adam S. Chilton & Marin K. Levy, Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals, 101 Cornell L. Rev.1, 39, 53 (2015).

[31] Richard A. Posner, Divergent Paths: The Academy & the Judiciary 243 (2016).

[32] See Chilton & Levy, supra note 30, at 41.

[33] Id.at 4–5 (using the appointing president).

[34] See Neil A. Lewis, Deadlock on Appeals Court Judges Ends, N.Y. Times (June 13, 2008), https://www.nytimes.com/2008/06/13/washington/13brfs-DEADLOCKONAP_BRF.html [https://perma.cc/VHE8-5PU2].

[35] Cf. In re Vertrue Inc. Mktg. & Sales Practices Litig., 719 F.3d 474, 476 n.** (6th Cir. 2013) (“Judge Kennedy participated in oral argument in this case but did not participate in this decision due to her retirement.”).

[36] See Debra Cassens Weiss, 6th Circuit Judge Retired Amid Probe of Travel Expenses; Allegations Referred to DOJ, ABA J. (Jan. 21, 2014), http://www.abajournal.com/news/article/6th_circuit_judge_retired_amid_probe_of _travel_expenses_allegations_referre/ [https://perma.cc/NZ5A-FWFM].

[37] Chilton & Levy, supra note 30, at 24–25.

[38] Id. at 26–28.

[39] I searched all opinions available in Westlaw’s Sixth Circuit opinion archive using the Advanced Search’s Panel option to isolate which judges participated in deciding each case. This search does not include three-judge redistricting cases where the chief judge assigns a circuit court judge to lead a panel that includes two district court judges. The two most recent redistricting cases involved Democratic Sixth Circuit Judges Moore and Clay leading 2–1 Democratic panels in ruling against the Republican-created maps of, respectively, Ohio and Michigan. See Ohio A. Philip Randolph Inst. v.Householder, 2019 WL 1969585 (S.D. Ohio May 3, 2019); League of Women Voters of Mich. v. Benson, 2019 WL 1856625 (E.D. Mich. Apr. 25, 2019).

[40] A few of the thousands of opinions misspelled the panelists’ names, which affected how Westlaw listed the panelists. For 2012 through 2016, this Essay has identified three opinions that spelled “Daughtrey” as “Daughtery,” one opinion that spelled “Daughtrey” as “Daughtry,” and four opinions that spelled “Suhrheinrich” as “Surheinrich.” This Essay correctly categorizes the pairings in these cases despite the obvious scrivener’s errors.

[41] While most active judges tend to sit with judges nominated by presidents of the opposite party, these judges tended to sit more frequently with judges nominated by presidents of the same party.

[42] Judge Daughtrey sat infrequently with Judge Martin (16 times) and sat more frequently with visiting Republican Judges Zouhary (15 times), Cleland (11 times), and Maloney (14 times) than with visiting Democratic Judge Economus (6 times). And senior judges rarely sit with each other due to the assignment procedures; Judge Daughtrey did not sit with two of the three other Democratic senior judges (Judges Gilman and Keith) and one of the four Republican senior judges (Judge Norris) during this time period. These tendencies, if anything, should have tilted Judge Daughtrey’s panels in a Republican direction.

[43] The % Total Active Cases and % Total Both Active and Senior Cases statistics include only active and senior judges on the Sixth Circuit during the entirety of 2012 through 2016. Thus, these figures do not include Judges Kennedy and Martin or the assorted judges who sat by designation on the Sixth Circuit.

[44] Tackett v. M & G Polymers USA, LLC, 811 F.3d 204 (6th Cir. 2016) (Chief Judge Cole paired with both Judges Keith and Merritt).

[45] Issa v. Bradshaw, 904 F.3d 446 (6th Cir. 2018) (Chief Judge Cole and Judge Merritt joined Judge Moore).

[46] Gun Owners of America, Inc. v. Barr, 2019 WL 1395502 (6th Cir. Mar. 25, 2019).

[47] Ortiz v. Jordan, 316 F. App’x 449 (6th Cir. 2009) (ruling, over a Judge Daughtrey dissent, that prison officials were entitled to qualified immunity).

[48] Levy, supra note 11, at 90.

Concessions Causing Detrimental Impacts on the Original Vision of National Parks

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

Concessions Causing Detrimental Impacts on the Original Vision of National Parks

Kelsey Bryant[I]

“Scenery is a hollow enjoyment to the tourist who sets out in the morning after an indigestible breakfast and a fitful night’s sleep on an impossible bed.”[2]

I.  Introduction

Stephen T. Mather, the first Director of the National Park Service (NPS), created this vision for National Park concessions.[3] The present-day Commercial Services Program maintains this vision since Mather’s quote is displayed on the home page of their website today.[4] The NPS promises its visitors that they will get to travel and experience the land and water that John Wesley Powell and Lewis and Clark once traveled[5] with the luxuries of a resort and “high-quality visitor services”[6]—a comfortable bed to lay your head on at night, convenient meals, and even transportation to go wherever you want.[7] This might seem like a great way to experience the wonders of our national parks, but these hospitality benefits come at some cost.

Professor Joseph L. Sax illustrates that the Park Service created a vision geared toward “the windshield tourist”[8] and comfort for visitors, where concessionaires create illusory wilderness experiences that do not showcase the real rigors and power of nature to people.[9] After World War II, there was an accelerated use of national parks that continues to increase.[10] At this time, policies started to develop that encouraged tourism and public use of the parks, specifically the establishment of concessions that accommodated visitors through lodging, restaurants, and entertainment services.[11] By approving concession demands and fulfilling park visitors’ desires for integral features such as hotels, cabins, and laundromats in almost every national park, problems of congestion, and the resulting increase in facilities and services, threaten the parks’ ability to achieve their original purpose.[12]

Although the Park Service has broad discretion in its concession management,[13] there is significant debate about whether it is exercising that discretion wisely in light of the agency’s mission. With these continuing pressures, debates regarding park use will continue, and questions of where to draw the line for concessionaires should be a priority to our NPS. This Note argues for urgent reevaluation of concessions management by the NPS. Even though today’s visitors demand more services and entertainment, new boundaries and policies should be implemented that encourage the priority of preservation in our National Parks.

Section I briefly examines the history of national parks, along with how concessions became increasingly popular and attracted new crowds of people. This section also includes a discussion of the overarching debate in which the national park concessions issue lies: whether the primary purpose of national parks is preservation or use and enjoyment. Section II explores specific problems within national park concessions that confront national park preservation today that our government can get in front of, such as the ongoing fight against water bottle sales in national parks. Finally, Section III of this Note proposes a legislative solution to solve the issue of concessions having such a detrimental impact on the original vision of the parks system.

II.  Background

A. History of National Parks

 Most of the nineteenth century was devoted to allocation and privatization of lands, but the conservation movement soon sparked federal policy to incorporate the idea that some lands should be retained by the public.[14] Starting in 1817, the federal government allocated public lands containing live oak and red cedar for naval construction and then, in in 1832, reserved Hot Springs, Arkansas, which was known for its medicinal value.[15] Contributing to this movement, the Supreme Court in United States v. Gratiot upheld federal leasing of lead mines.[16]

The first significant success for allocation of land for preservation purposes was Abraham Lincoln and Congress’ decision in 1864 to place Yosemite Valley and Mariposa Big Tree Grove under the protection of California.[17] Conservationists and naturalists, such as John Muir, Clarence Dutton, and John Wesley Powell, were able to reach the public by advocating for protection through published writings that became the driving force behind the creation of several national parks.[18] Eight years later, Congress and Ulysses S. Grant made history when they reserved two million acres of public land to create Yellowstone National Park.[19]

The proliferation of national parks showcased the “contemporary intellectual, social, and economic changes” of the public appreciation for the natural wilderness, a longing to “escape the increasingly urban places that resulted from industrialization, and the popularization from the automobile.”[20] The sparked awareness and need for preservation resulted in the founding of the Appalachian Mountain Club in 1876, described as “one of the first private conservation organizations” with a goal to preserve and protect eastern wilderness areas.[21] The federal government followed the movement by establishing the United States Geological Survey in 1879, a bureau within the Department of the Interior (DOI) responsible for surveying and mapping lands in national territories.[22] President Roosevelt created five new national parks during his administration along with many other sources of public lands, such as national forests and monuments.[23]

Even though Yellowstone was named a national park in 1872, the NPS was not founded until 1916.[24] During this gap of time, the parks lacked centralized management and duties were shifted between the Departments of War, Agriculture, and Interior.[25] According to provisions of an 1894 Act, the Secretary of the Interior was to make regulations providing “for the preservation . . . of all timber, mineral deposits, natural curiosities, or wonderful objects within said park.”[26] The Interior struggled to protect the parks from abuses such as private commercial interests that took advantage of the parks and the public.[27] These private commercial interests saw “profit potential in the parks and began to exploit their resources,” often without being monitored.[28] Consequently, national parks lacked protection and funding, sparking doubts for their future.[29]

The passage of the Antiquities Act in 1906, which gave the President authority to declare national monuments, resulted in a substantial increase in national parks.[30] By 1916, the Interior Department was responsible for fourteen national parks and twenty-one national monuments, although Congress still lacked an organization or policy guidance that would manage them.[31] Preservationists did not push for park service reformation until the defeat of the Hetch Hetchy Valley in Yosemite National Park.[32] In order to provide water and power to San Francisco, Congress passed legislation allowing Hetch Hetchy Valley to be dammed, causing preservationists to become alarmed and support the creation of a “comprehensive management scheme.”[33]

Finally, there was a breakthrough in 1916 when Congress passed and President Woodrow Wilson signed the NPS Organic Act, which created the NPS within the DOI.[34] Congress gave the NPS a mission to manage the parks in a manner that would “conserve the scenery and natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”[35] This mission statement created an ongoing pressure for NPS, because it left a responsibility to the Park Service to provide for use and enjoyment of the parks and, importantly, to do so in a way that would leave them unimpaired for the enjoyment of future generations.

B. Concessions

The continued existence of the parks depended on the number of people who utilized them, pushing preservationists along with railroad officials to be interested in how to increase park tourism and outdoor recreation.[36] However, to counter the influence of the emerging utilitarian philosophy, greater use of the parks was needed to continue their existence.[37] Therefore, the scenic preservation was compromised by building additional roads, hotels, and other visitor facilities.[38] Self-defeating management coupled with the need for increased use led to the creation of the Organic Act.[39] This gave the Secretary of the Interior authority to make rules and regulations as necessary for use and administration of national park areas and also gave the Secretary power to develop various visitor facilities in the parks through concessionaire leases.[40]

By the end of World War II, park visitation had exceeded all expectations to the point that the Park Service was unable to accommodate all visitors.[41] Throughout the 1950s and 1960s, Congress allocated over one billion dollars to the Park Service to provide accommodations for the increased number of visitors.[42] However, by 1965 Congress’s ideals started to shift and so stated that the Park Service should only allow concessions within parks if they were “consistent…with preservation…[of] park values.”[43] The National Park Concessions Policy Act of 1965 (hereinafter “The Act”) was an effort to deal with park amenities with a preservation-based policy: “[i]t is the policy of Congress that the development [of public accommodations] shall be limited to those that are necessary and appropriate for public use and enjoyment . . . and are consistent to the highest practicable degree with the preservation and conservation of the areas.”[44]

Even though the Act seems focused on preservation, it has brought many challenges in balancing the Park Service’s need to provide adequate services and facilities for park supporters while protecting the parks for future generations.[45] Practices allowed by the Act resulted in less money being spent on protection and preservation.[46] The Act also provided businesses with “long-term contracts, exclusivity, bidding advantages and the opportunity to profit from any expenditures made on park facilities if they entered into concessions with the Park Service.”[47]

After the Park Service encountered an array of problems, Congress enacted the National Parks Omnibus Management Act of 1998 (hereinafter “The Omnibus Act”).[48] The Omnibus Act included “provisions designed to reform the concessions industry, promote local fund raising activities, demand fiscal accountability by park managers, encourage cooperative agreements with universities and the scientific community, and establish new criteria for the admission of new parks to the system.”[49] The Omnibus Act supposedly ended all of the preferential rights concessionaires had enjoyed under the Concessions Policy Act.[50] For instance, the Concessions Policy Act authorized the parks to retain concession fees themselves[51] rather than sending the fees straight to the general treasury fund as required under the Omnibus Act.[52] Even though the Omnibus Act was a step in the right direction, there are still problems that arise out of concessions, such as overcrowding of visitors.[53] This causes an increasing amount of wear and tear on the parks including traffic jams, pollution from off-road vehicles, and pollution from scenic overflights.[54]

C. Preservation v. Use and Enjoyment

The Organic Act deliberately entails a conflicting “dual mandate” that creates tension between preserving an area and managing it for public use and enjoyment.[55] The dual mandate provides two priorities for park management that NPS must balance depending on the current needs of the park.[56] Historically, the NPS “championed preservation over economic use,” but the demanding pressures of “recreational and cultural responsibilities” led to a shift.[57] This Note showcases how the dual mandate requires balance, but preservation should be the dominant goal of national parks and dictate the policies surrounding concessions.

From prior cases, it is obvious that judicial review and other such tools of ensuring compliance with the Organic Act are not powerful enough to “moderate the anthropogenic pressures that risk the long-term impairment of our national parks.”[58]The NPS lacks a statutory amendment that explicitly clarifies that the NPS favors the conservation mission, prioritizing preservation over potentially damaging use and enjoyment.[59] Unlike the Wilderness Act or the Wild and Scenic Rivers Act, which are well-known to give clear priorities to preservation and natural resource values, national parks are left continually fighting the battle of those in favor of preservation versus those who seek to only enjoy or use the land, no matter how much damage the activity creates.

Development of concession facilities falls under the use prong of the dual mandate.[60] Concessions in parks contribute to the overabundance of crowds, promoting increased use of parks or new types of accommodations or recreation.[62] Rather than just providing the necessary amenities for the public to enjoy the “scenery, natural objects, and wildlife” while visiting the parks, concessionaires tend to overreach their goals, harming any environment in their path.[63] Certain types of concession facilities or means of use are unnecessary to the public. Even though Congress adopted the “necessary and appropriate” language in the Concessions Policy Act of 1965, Congress did not define these terms, giving no teeth to this provision.[64]

III.  Problems that Exist in National Parks Due to Less Restrictive Policies on Concessions

Congress needs to address the continual management and regulation challenges faced by the NPS. In particular, underfunding continues to plague the national parks, as problems such as overcrowding, encroaching development, and pollution tend to add to the deteriorating budget.[65] The increasing pressure on the NPS by visitors and recreational users has industrialized many of the parks, in turn creating long-term environmental harm as well as management and budget deficiencies.[66] Below are examples of concessions that continue to cause harmful effects to the national parks that should be limited or even eliminated in order to preserve the original vision for national parks.

A. What’s in Our National Parks’ Trash Cans?

Since National Parks attract millions of visitors from around the world, one consequence of national park concessions is the 100 million pounds of garbage a year those visitors generate, which mostly ends up in landfills.[67] The National Parks Conservation Association recently put together a report on what is in the trash cans in national parks.[68] Most of what the Association found is what you would find in your household trash and recycling bins; “[p]lastic bottles, paper cups, plastic bags, food [sic] and food wrappers” are some common examples.[69] Unfortunately, the NPS currently has little control over what people bring in or even buy from concessionaires in the national parks. Statistics show that 82% of visitors at national parks consume food or drinks while in the parks and only about half (53%) purchase these items within the park.[70]

National Parks could save significant expenses if they did not have to spend their resources removing substantial amounts of trash. The NPS has to use taxpayer dollars to manage the burden of disposing and recycling all plastic, including plastic water bottles.[71] Dealing with the removal of trash takes away from funding other services. The Yellowstone National Park environmental protection specialist concedes that the park “spends half a million dollars annually to remove 3,000 tons of trash that enter the park each year.”[72] Similarly, Denali National Park “spends about $75,000 a year to get rid of the 140 tons of garbage that visitors bring into the park.”[73] Unfortunately, large quantities of trash and costs associated with the removal process render constant maintenance challenging.[74]

Even though energy use and fuel consumption are the main causes of climate change, landfills are also to blame.[75] Landfills produce 20% of the potent greenhouse gas called methane, which has been proven to cause “[twenty-five] times more global warming than carbon dioxide.”[76] Since most waste from national parks ends up in landfills, this is a starting point where our government can make a difference in our environment.[77] National parks such as Alaska’s Denali are as far away as fifty miles from the closest recycling plant, which is sometimes not even able to handle Denali’s large amounts of recycling loads.[78] Therefore, eighty percent of Denali’s trash ends up in landfills.[79] However, recycling usually only delays plastic’s inevitable destination: a trash can.

As we all have seen at some point, much of pollution and trash end up harming and even killing some of our Earth and parks’ most precious species. Much of our pollution, which the parks contribute to, has been “discovered in the mouths of whales and bellies of dead seabirds that mistook it for food.”[80] Some of these species are even on the Endangered Species List, which the NPS is supposed to prioritize and do everything in its power to obey and promote their protection.[81] Also, pollution often affects the visitor experience, blinding travelers to the aesthetic beauty of the park. As we saw in the study above, concessions add to this pollution by serving their food and drinks in disposable materials such as plastic water bottles. It is contradictory to allow concessions to aid the pollution problem by serving waste products to NPS visitors.

i. The Water Bottle Controversy

By reversing a ban on bottled water sales at national parks, was the Trump administration attempting to reduce plastic pollution, or was there another goal?[82] Does this move reflect the NPS commitment to providing a safe and world-class visitor experience? Does it demonstrate that corporate agenda and lobbying always win, or that plastic pollution is not a global problem, or that our government is not concerned about climate change? By reversing this ban, our government sent visitors a contradictory message that the Green Parks Plan, a strategic NPS plan centered around sustainability and recycling, is not taken seriously.[83]

The ban’s reversal was approved three weeks after David Bernhardt was approved as Deputy Secretary of the Interior.[84] Bernhardt is a prior lobbyist with Brownstein Hyatt Farber Schreck, a law firm that represents Nestle Water (Nestle distributes Deer Park brand as well), one of the most dominant water bottle distributers in the United States.[85] This conflict made many senators question Bernhardt’s bias during his confirmation hearing, because his past corporate affairs contradict the DOI’s goal and “regulations to promote clean air and water.”[86] Publicists exposed that the Trump administration (specifically the DOI), including Bernhardt, coincidentally worked with the same industry to sell their brand of water in the parks.[87]

The water bottle industry’s arguments against the ban focused on the health and safety of the three hundred million annual visitors to the NPS’s 411 sites.[88] When the plastic water bottle ban was in place, the NPS spent millions of dollars constructing a sufficient amount of water stations at which people could fill their own water bottles for no cost.[89] Parks such as Zion National Park also sell reusable bottles that visitors are able to take home, and those sales increased by seventy-eight percent when the ban took place.[90] Therefore, these parks have proved the water bottle industry wrong, as the parks are able to supply purified water to its visitors and even continue to make a profit despite worry amongst some critics.[91]

The decision to ban water bottles was ultimately based on the statistic that at least fifty billion plastic water bottles are thrown away by Americans annually.[92] About twenty billion oil barrels were used to produce this high quantity of water bottles, the production of which emitted greenhouse-gas pollutants.[93] The Interior Department spoiled a successful and popular “opportunity to improve the environment on the millions of acres that parks occupy,”[94] sending out a damaging and contradictory message to America that portrays where their priorities lie. The ban could decrease plastics going to the landfills, help reduce the amount of greenhouse gases generated by the manufacture of plastic bottles, reduce litter, protect wildlife against plastic ingestion, and save visitors money via free refilling stations.[95]

B. Turn Off Your Engines

Air pollution in national parks continues to increase as vehicles, snowmobiles, jet skis, terrain vehicles, and airplane/helicopter oversights emit nitrous oxide and hydrocarbons.[96] These are all examples of transportation that concessionaires rent out to visitors for additional amenities and activities in the parks. Such air pollution has damaged the scenic beauty of the parks and disturbed plant and animal life. In the face of significant overcrowding, some parks such as Grand Canyon National Park and Zion National Park have prohibited automobiles to try to lessen the congestion and pollution.[97] In the recent past, the NPS, in an effort to alleviate the harmful effects of gas emissions, banned snowmobiles in Yellowstone and Grand Teton National Park.[98]

Just like snowmobiles, Congress found that scenic over flights that concessionaires sell contribute to noise pollution and negatively impact the air quality and wildlife.[99] From April to September 2015, about 650 tourists took advantage of the helicopter oversight concession.[100] The helicopters burden 99.75 percent of Glacier National Park’s visitors, yet only to allow tourists to see a miniscule piece of the park.[101] The NPS’s Natural Sounds and Night Skies Division have proven through many studies that aircraft noise negatively burdens surrounding wildlife as well.[102]

Sounds plays a significant role in ecosystems, as many activities such as “finding desirable habitat and mates, avoiding predators, protecting young, and establishing territories are all dependent on the acoustical environment.”[103] Furthermore, studies show noisy environments cause animals stress; they have found that species such as the Sonoran pronghorn try to stay away from areas disturbed by military jets, and the gleaning bat is not able to hunt because of the noise from roads.[104] These effects should be carefully considered when humans generate noise in national parks, as these sounds can have negative implications on the well-being and vitality of wildlife populations within a park or even an entire ecosystem.

In 2000, Congress passed the National Parks Air Tour Management Act, which required the FAA and NPS to create a detailed plan for each park that hosts more than 50 overflights annually.[105] The agencies were then responsible to “incentivize quieter technology, limit flights, even ban them altogether.”[106] However, the problem is that the FAA has sole authority over civilian air travel in the United States and is the leading agency under the Act; since the Act does not give a deadline for the agencies to follow, there has not been a single plan implemented since its passage, leaving no change in the conduct of the overflight concessionaires.[107] In a 2006 Government Accountability Office report, the DOI blamed the Act’s lack of progress on the agencies’ differing mission and policies.[108] The agencies have not followed Congressional intent to carry out the Act’s purpose and just put the responsibility of figuring out the significance of noise pollution on the back burner. Sadly, air pollution in some of the western parks has reached the same drastic levels as those in Los Angeles.[109] A domino chain of effects for both animals and humans is created when human-caused noise sources stress the interconnecting system of resources that the wildlife depends on for survival. Visitors also seek natural sounds, as they travel to escape their loud and urban lives.

IV.  Preserve National Parks’ Ordinary Goals

The idea that a variety of concession services and amenities are necessary in order to attract tourists, to ensure that national parks’ existence is not threatened, has faded. From the overcrowding tourists that fill each park, it is evident that parks are no longer at the mercy of providing extensive concession services. In order to get a gratifying experience, visitors, Congress, and even the Park Service believe that the parks should be full of the modern amenities they enjoy on a daily basis, such as “fast food, laundromats, shopping facilities, and electronic entertainment.”[110] In light of these increasing pressures from the public, the national parks need “reinforcement of a national re-commitment to conservation.”[111]

A. Small Change with a Huge Impact

The needed change in national parks “depends directly on the inconsistent generosity of Congress, the strength of advocacy organizations, the disposition of the current President, and political winds.”[112] An amendment should be put in place that clearly and explicitly prioritizes conservation of the parks’ resources, landscape, and wildlife first, and promotion of human enjoyment second. It is obtainable for both goals to be compatible, but the law should require that conservation take priority in every decision made. Rather than to promote commercialism and tourism, the Organic Act can be construed to support this interpretation since the enjoyment clause entails a condition on any use that the parks remain “unimpaired” for the future.[113] Also, the fact that the “conservation” clause is before the “use” clause, indicates legislators emphasized preservation and conservation as the primary goal.[114]

A simple amendment to change the language of the Organic Act would clarify priorities of the dual mandate and take away the tension between preservation and use and enjoyment. The amendment would add that conservation and preservation are given the highest priority at all times and that use and enjoyment should be compatible with the goal of preservation. This will give the NPS and courts a clear road map to resolve and control the present and continual conflicts that center around the dual mandate. The change would result in less litigation over concession policies because the mandate would be clear in the future and the NPS would be able to limit harmful human impacts and have conservation as its paramount focus. Our focus needs to be on conservation for future generations since we only get one chance at succeeding at that task.

An objection may be from those who disagree with this Note’s view that preservation is paramount in the Organic Act and believe the dual mandate does not place conservation as a higher priority than enjoyment. Critics who take this stance view that the dual mandate was intentionally to create flexibility for the NPS, legislators, and courts. Thus, both goals of the Act are “interdependent and simultaneous” and prioritizing one above the other would contradict with the “valid political compromise that must be respected.”[115] Critics of preservationists also argue that putting conservation ahead of enjoyment is “elitist and undemocratic.”[116] Preservationist Joseph Sax has been criticized for this in his own works such as when he stated that “access to the national parks should be limited to those who have the sensitivity and willingness to encounter nature of its own terms.”[117] These are all valid objections that have been made previously by many critics, and as such, it is unlikely that such a reform of the Organic Act will be easily accomplished and passed even if there is a progressive Congress in place. However, this idea and debate needs to be expressed by the public and organizations, as it might be our only hope to achieve a final resolution of the ongoing issue.

B. A Step in the Right Direction

Another simple proposal to alleviate the tension of the dual mandate consists of the administration, at a minimum, adopting policies that err on the side of preservation. Instead of sending out a message, as our government has previously done by revoking the ban of water bottles in certain national parks, the public, national parks, and government need to be building a foundation. In order to start making this movement, it is essential that the NPS engage the public by informing them of the importance of preserving our national parks for the future. It is also important that national advocacy organizations that support conservation of national parks, such as the Sierra Club, keep the public informed and involved in the movement. This could consist of different community programs that promote protection of the parks, such as clean up groups, educational programs, and replanting different species of plants. This will help our legislators see the need and desires of the public – that the public wants a change in priorities of the Organic Act.

If such a clarifying amendment were enacted, it would allow the NPS and national parks individually to enact policies to aid the problems discussed previously. For example, parks could mandate that there should be no disposable waste served by concessionaires (plastic, paper, etc.) or even reissue the plastic water bottle ban they already started. They would also be able to limit off road vehicles and oversight tours to a minimum or even eliminate them if such policy is necessary to preserve the wildlife and noise pollution within the parks.

V.  Conclusion

Many problems such as waste and noise pollution, gas emissions, the daily wear and tear from overcrowding of tourists, and unnecessary concessions are putting the preservation of national parks in jeopardy.The two goals of conservation and enjoyment of the parks have caused many conflicts throughout the national parks’ history, as the Organic Act mandate requires the NPS to accommodate both objectives. This Note takes the position that a simple amendment to the Organic Act that clarifies that preservation is of the utmost priority will take away the duality tension. In furtherance, an amendment such as this will allow the parks and the NPS to achieve successful policies such as the banning the sale of water bottles in the parks. This would send out a message to the public that the purpose of the parks is to be preserved for future generations. As such, it is up to the public, advocacy organizations, the NPS, and Congress to continue to fund and reform our national parks so that the concession industry acts in a more accountable and effective manner with the purpose of preservation at the forefront at all times.

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[I]  J.D. Candidate 2019, University of Kentucky College of Law.

[2] U.S. Dep’t of the Interior, Commercial Services Program, Nat’l Park Serv., https://www.nps.gov/orgs/csp/index.htm [https://perma.cc/TQY7-DU39] (last updated Oct. 30, 2018).

[3] Id.

[4] Id.

[5] Joseph L. Sax, Mountains Without Handrails: Reflections on the National Parks 98 (1980).

[6] See U.S. Dep’t of the Interior, supra note 2.

[7] See generally Ensuring High Quality Visitor Services, Nat’l Park Serv., https://www.nps.gov/subjects/concessions/index.htm [https://perma.cc/DTQ4-HWG6] (last visited May 25, 2019).

[8] A “windshield tourist” is an individual who traverses the park without leaving their car.

[9] See Sax, supra note 5, at 99–100.

[10] Michael Mantell, Preservation and Use: Concessions in the National Parks, 8 Ecology L.Q. 1, 2 (1979).

[11] Id. at 2–3.

[12] Id. at 3.

[13] See U.S. Dep’t of the Interior, Ensuring High Quality Visitor Services, Nat’l Park Serv., https://www.nps.gov/subjects/concessions/index.htm [https://perma.cc/KS3Q-GGP4] (last updated Oct. 10, 2018) (“[T]he Commercial Services Program administers 500 concession contracts….”).

[14] James Rasband et al., Natural Resources Law and Policy 146 (3rd ed. 2016).

[15] Id.

[16] United States v. Gratiot, 39 U.S. 526, 538–39 (1840).

[17] “Yo-Semite Valley,” and “Mariposa Big Tree Grove,” ch. 184, 13 Stat. 325 (1864). California later re-ceded the land to the federal government.

[18] Brief History of the National Parks, Library of Congress, https://www.loc.gov/collections/national-parks-maps/articles-and-essays/brief-history-of-the-national-parks/ [https://perma.cc/ZTS8-U9JR] (last visited Oct. 17, 2017).

[19] Yellowstone National Park Protection Act, ch. 24, 17 Stat. 32 (1872).

[20] Brief History of the National Parks, supra note 16.

[21] Id.

[22] Id.

[23] Theodore Roosevelt and Conservation, Nat’l Park Serv., https://nps.gov/thro/learn/historyculture/theodore-roosevelt-and-conservation.htm [https://perma.cc/932Y-7KVY (last updated Nov. 16, 2017).

[24] Brief History of the National Parks, supra note 16.

[25] Id.; U.S. National Parks–In the Beginning, Nat’l Geographic (May 26, 2010), https://www.nationalgeographic.com/travel/national-parks/early-history [https://perma.cc/HVM8-JW7D].

[26] The Lacey Act of 1894, ch. 72, § 4, 28 Stat. 73 (codified at 16 U.S.C. § 26 (1976)).

[27] U.S. National Parks–In the Beginning, supra note 23.

[28] Id.

[29] See Rasband et al., supra note 12, at 146.

[30] Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Ga. L. Rev.473, 488–89 (2003).

[31] Rasband et al., supra note 12, at 146—47.

[32] Richard J. Ansson Jr. & Dalton L. Hooks Jr., Protecting and Preserving out National Parks in the Twenty First Century: Are Additional Reforms Needed Above and Beyond the Requirement of the 1998 National Parks Omnibus Management Act?, 62 Mont. L. Rev. 213, 218 (2001).

[33] Id.

[34] National Park Service Organic Act of 1916, ch. 408, 39 Stat. 535 (1916) (codified as amended at 54 U.S.C.S. § 100101 et seq.).

[35] Id.

[36] Mantell, supra note 8, at 10.

[37] Id.

[38] Id. at 12.

[39] Id. at 13.

[40] National Park Service Organic Act of 1916, ch. 408, § § 2, 3, 39 Stat. 535 (1916) (codified as amended at 54 U.S.C.S. § 100101 et seq.).

[41] Mantell, supra note 8, at 17.

[42] Id. at 22.

[43] Id. at 28.

[44] National Park Concessions Policy Act of 1965, ch. 6, 79 Stat. 969 (codified as amended at 54 U.S.C.A. § 101912 (b) (2018)).

[45] Alfred Runte, National Parks: The American Experience, 173 (2d ed. 1987).

[46] Id.

[47] Ansson & Hooks, supra note 32, at 220.

[48] National Parks Omnibus Management Act of 1998, Pub. L. No. 105–391, 112 Stat. 3497 (codified as amended at 54 U.S.C.S. § 100701 et seq. (2018)).

[49] Ansson & Hooks, supra note 32, at 222–23.

[50] 16 U.S.C.A § 5952(7) (1998);Concessions Policies Act of 1965, Pub. L. No. 89-219, § 4, 79 Stat. 969.

[51] Concessions Policies Act of 1965 § 4.

[52] 16 U.S.C.A. § 407(c) (1998).

[53] See Michael Satchell, National Parks in Peril, U.S. News & World Rep. (July 21, 1997), https://www.usnews.com/news/articles/2016-08-19/national-parks-in-peril.

[54] Id.

[55] Denise E. Antolini, National Park Law in the U.S.: Conservation, Conflict, and Centennial Values, 33 Wm. & Mary Envtl. L. & Pol’y. Rev. 851, 861–62 (2009).

[56] See id.

[57] Id. at 863–64.

[58] Id. at 885.

[59] Id. at 885, 912.

[60] Id. at 36.

[62] Id. at 36.

[63] Id.

[64] Concessions Policies Act of 1965, Pub. L. No. 89-219, § 4, 79 Stat. 969.

[65] Antolini, supra note 3, at 876–87.

[66] Id. at 877–80.

[67] Greta Weber, Iconic National Parks Move to Eliminate Landfill Trash, Nat’l Geographic (June 29, 2015), http://news.nationalgeographic.com/2015/06/150629-zero-landfill-national-parks-yosemite-grand-teton-denali/ [https://perma.cc/59RB-EBUG].

[68] Jamie Varner, What’s in National Parks’ Trash Cans–and What You Can Do, Nat’l Parks Conservation Ass’n (Aug. 16, 2016), https://www.npca.org/articles/1289-what-s-in-national-parks-trash-cans-and-what-you-can-do [https://perma.cc/UAA3-V3R4].

[69] Id.

[70] Id.

[71] Darryl Fears, National Parks Put a Ban on Bottled Water to Ease Pollution. Trump Just Sided with the Lobby that Fought It., The Washington Post (Aug. 17, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/08/17/national-parks-banned-bottled-water-to-ease-pollution-trump-just-sided-with-the-lobby-that-fought-it/?utm_term=.e9b5fc5104d9 [https://perma.cc/KR3D-JACPhttps].

[72] Chris Valencia, As Park Attendance Grows, so Does Trash, Univ. Miami Sch. of Commc’n (May 6, 2008), http://www.ournationalparks.us/park_issues/as_park_attendance_grows_so_does_trash problem/  [https://perma.cc/R4KF-9R74].

[73] Id.

[74] Id.

[75] Weber, supra note 65.

[76] Id.

[77] Id.

[78] Id.

[79] Id.

[80] Fears, supra note 71.

[81] Endangered Species in our National Parks, Nat’l Park Reservations (Aug. 9, 2016), https://www.nationalparkreservations.com/endangered-species-in-our-national-parks/ [https://perma.cc/4RHH-VC57]; 16 U.S.C. § 1536 (2012).

[82] Fears,supra note 69.

[83] Kurt Repanshek, Traveler’s View: Lost in the Water Bottle Ban Debate Is National Park Service Leadership, Nat’l Parks Traveler (Aug. 21, 2017), https://www.nationalparkstraveler.org/2017/08/travelers-view-lost-water-bottle-ban-debate-national-park-service-leadership [https://perma.cc/PV6T-575S].

[84] Fears, supra note 69.

[85] Id.

[86] Id.

[87] Id.

[88] Id.

[89] Id.

[90] Id.

[91] See id.

[92] Id.

[93] Id.

[94] Id.

[95] Repanshek, supra note 83.

[96] Ansson & Hooks, supra note 32, at 224.

[97] Id. at 224.

[98] Id.

[99] Id. at 225.

[100] Ryan Wichelns, For National Parks, Helicopter Tours are a Noisy Problem, Backpacker (Feb. 28, 2017), https://www.backpacker.com/news-and-events/national-park-helicopter-tours [https://perma.cc/MUQ2-M99S].

[101] Id.

[102] U.S. Dep’t of the Interior, Effects of Noise on Wildlife, Nat’l Park Serv., https://www.nps.gov/subjects/sound/effects_wildlife.htm [https://perma.cc/5MBY-LDQX] (last visited Jan. 15, 2018).

[103] Id.

[104] Id.

[105] Wichelns, supra note 98.

[106] Id.

[107] Id.

[108] U.S. Gov’t Accountability Off., GAO-06-263, National Parks Air Tour Management Act: More Flexibility and Better Enforcement Needed 12 (2006).

[109] Tony Barboza, An ‘F’ in Air Quality: California National Parks Top the List for Worst Pollution, Los Angeles Times (July 28, 2015), https://www.latimes.com/local/lanow/la-me-ln-parks-air-quality-20150727-story.html [https://perma.cc/2RSD-ZXRD].

[110] Mantell, supra note 10, at 49.

[111] Antolini, supra note 53, at 912.

[112] Id. at 882.

[113] National Park Service Organic Act of 1916, ch. 408, 39 Stat. 535 (codified as amended at 54 U.S.C.S. § 100101 et seq.).

[114] See id.

[115] Antolini, supra note 55, at 916.

[116] Id. at 917.

[117] Id.

Legal Realism Now?

Download a copy of this Response:

David Simon

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

Legal Realism Now?[1]

David A. Simon*

I.  Introduction

Legal realists have accomplished quite a bit since Holmes. Some have succeeded in swallowing whole fields of law with economic jargon. Others have eaten away at law’s mystical innards by exposing its racism, sexism, and classism. And still others have evacuated from the legal intestines the digestible bits so savory to the mouth of the 19th century jurist: the categories. What is left of law in this picture? One answer, for many realists, is not much. Law is a policy tool, don’t you know? It is designed to do things. And it is the task of scholars to show how law does things, not to identify “transcendental nonsense.”[2] Surely Felix Cohen has a point.

But, as Thomas Grey reminds us, even the most tough-minded realist had a love for categorization and systematization.[3] True, it was with an eye toward how useful the exercise, but not always. Much of Adam Mossoff’s essay, Trademark as a Property Right,[4] could easily be regarded as engaging in the nonsense legal realism left behind. This is how Ramsi Woodcock characterizes it in his response, Legal Realism: Unfinished Business.[5] Formalistic, conceptual analysis is, on this view, an analytical black hole. But this is an exaggeration, a mischaracterization. It is true, as Brian Frye notes, that Mossoff’s essay makes a “valuable contribution,”[6]even if it is not the kind of contribution of which many are fond. More than that, though, Woodcock’s response reveals a curious analytic amnesia about the nature of conceptualization and realism. And it is one that traps realists into a lexical vortex not unlike the one they so eagerly deride.

II.  Realism and Formalism

The realists replaced talk of legal metaphysics with power,[7] and later economics, race, sex, and so on.[8] I must admit that I regard this development as positive. Replacing formalistic legal internalism—the view that legal categories have inherent conceptual features, and that legal analysis proceeds by deductive logic—with a more nuanced understanding of law as an interactive, social process was an important criticism. It enabled us to better understand law’s effects and how we might change them. And yet in attempting to escape the autonomous, legal hermeneutics characteristic of formalism, some analytical techniques developed their own kind of internalism.

Consider the economic analysis of law, where formalistic internalism of a different kind carries on without a hint of irony. The more one reduces legal issues to the economic lexicon, the more it resembles the formalist metaphysics it ridicules. Does fair use solve market failures? Does intellectual property law increase efficiency? Do patents have spillover effects? Should a legal entitlement be protected by a liability rule or a property rule? Does the legal rule create a positive or negative externality? Or, best of all, does the law increase social welfare? The task of the scholar answering these questions is to categorize things in the right way, in a way that allows an economic analysis. But in these cases the economic analysis is legal analysis. And what did the formalists want to do except legal analysis? If we follow the arguments to their most basic form—and even to their regular appearances in scholarship—we wind up in the world of abstractions legal realism promised to leave behind.[9]

That’s not to say there aren’t real differences. One of formalism’s rather astounding claims was to offer a method for “deducing” “right” answers from judicial decisions or statutes. Economic analysis of law, on the other hand, one-ups formalism by providing not merely answers but also questions. Economic analysts of law want policy to determine law, and economics to determine policy. When the analyst categorizes legal rules or doctrine, she does so to understand how to achieve particular policy results—those that maximize (or promote) efficiency.[10] One ought to be able to determine whether a rule is correct by evaluating whether it achieves the desired economic result. Right answers here are of the economic, not the formalist, kind.[11] So, too, are the questions.

I don’t mean to suggest that legal realism is the conceptual equivalent to law and economics; it certainly is not. I also don’t mean that other features of legal realism fail to surpass legal formalism; they certainly do. But it’s a mistake to think that conceptual analysis as such is a waste of time because we should concern ourselves only with policy. Not only does conceptual analysis sometimes yield important insights, it’s also critical to a functioning legal system. Formalism’s toolkit—analogical reasoning, adherence to precedent, conceptual analysis, etc.—is not just obscurantist cover for personal judgments, policy, or otherwise. Its machinery also provides a means for avoiding discussions of policy when it is impractical or imprudent.

Sometimes, maybe even often for trial judges, there is no obvious policy analysis to be had. Much of the trial judge’s work involves discovery and technical procedure. Legal rules do not always and in every case present the judge with clear policy choices. To ask them to consider the policy consequences of every decision they make, to ask them to predict and control future cases and strategy, is a burden too great for even the most accomplished jurist. And, even where consideration of policy is possible, it may not be desirable. If current events tell us anything about law, it’s that formalism may be law’s redeeming virtue as well as its mystical vice. Law can’t and shouldn’t be all politics, power, race or economics, just as it shouldn’t be all internal, conceptual wheel-spinning. Isn’t this what realism taught? This is why a rather well-known exponent of judicial pragmatism—one who has swooned over economic analysis of law[12]—suggests that judges might resort to the tools of formalism to build a legal decision.[13]

And yet we have grave unease about the self-proclaimed judicial scientist, or, for that matter, the more contemporary judicial umpire. Our worries stem from insights realism has wrought. And they are real worries. But if the formalism, so dominant in judicial chambers, cannot give us “right” answers, does it reduce the judge to a black-robed huckster? Are those well-meaning men and women doing anything other than playing a kind of conceptual shell game? There is a nuanced answer.[14] In hewing to subtlety, though, we are susceptible to the failures so meticulously identified by the realists: a desire for right answers, and, more importantly, a method for deriving them.

Perhaps this is why economic analysis of law, more than some of the other realist approaches to law, has appeal. It is not merely a criticism of law’s conceptual house of cards; it offers a “scientific” method for deriving “right” answers that are determined by “facts” in the “real world.” Of course, the economist’s real world is a fictional oversimplification. And the facts she uncovers are more institutional than brute.[15] At least, though, economics professes concern for (some) consequences of legal rules. Formalism, it is true, tends to become, well, overly formalistic. In these circumstances it is easy enough to see the appeal of approaches like those favored by economists. Does this mean that law and economics—or, for that matter, consequentialism—is valuable and legal formalism is not? Hardly. Does the realism of the 20th century render “quixotic” the formalism of Mossoff’s essay? Yes, but not entirely.

Although the method of legal formalism as an objective arbiter of law is passé, the method itself is not. If we try to determine what makes something property and what makes something not-property, have we done something valuable? Have we done something important by characterizing laws into liability and property rules?[16] Should we, while we’re at it, waive off Socrates for annoying the gentry with pestering questions about nature of justice?[17] The answer depends upon why we are categorizing. Economic categories help us evaluate, within a certain conceptual system, which rules we might want to adopt and why. I doubt many people think the formalism does the same.

The skepticism about formalism is a direct result of legal realism’s critique. Formalism-as-judicial-science is dead, and so legal formalism offers no independent reason to adopt its conclusions. But, then again, neither does economics. Didn’t legal realism’s razor cut judicial science at the knees, whatever its instantiation? Economics, then, must provide independent reason why we should accept its analysis before we run full boar into the thicket of efficiency, markets, and elastic demand. A system’s emphasis on consequences is a good reason to favor it over a system that disregards consequences. We should remember, though, that non-consequentialist reasoning doesn’t disregard consequences. And neither does formalism. Legal realists, above all else, have taken pains to point this out.

Then again, consequences are important. And if we claim—as do consequentialists—that consequences are all that matters, then it’s quite important to understand what count as consequences and how and why they are measured. A particular passage from Woodcock’s response is relevant:

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. Legal realism demands that the debate over trademarks be carried out in these terms, in terms of effects.[18]

Notice the conceptual backsliding. The realist should not assume, as does Woodcock, that the language of economics determines the measuring of effects. The more pragmatic among us wonder not whether modifications to trademark law will increase consumer surplus or promote social welfare (as measured by economists) but rather what effects does trademark law have on society? Does it silence critics? Does it threaten to invade every aspect of our lives, to render every experience we have to one determined by trademark holders (in particular, large corporations)? Most importantly, we want to know if the effects are the kind we want to encourage? Mossoff’s essay, it is true, does not consider such questions, but neither does Woodcock’s.

III.  Reality and Effects

An emphasis on effects shouldn’t require us in every circumstance to point out the effects of some conceptual scheme or another. Or if it does, we should also place similar demands on the kinds of effects we are interested in, and why. It is natural for Woodcock to assume that a focus on consequences requires a focus on reality. Consequences presuppose events with effects in the world of sense. For Woodcock, Mossoff’s conceptual analysis falls outside the scope of reality because it doesn’t concern events in the world of sense—which Woodcock defines as the quantifiable effects of laws upon economic measures. No wonder he has difficulty finding in Mossoff’s essay redeeming qualities. Formalism, in Woodcock’s view, is not reality based. And because formalism is fantasy, it should be discarded. It’s a curious conclusion to reach for someone who acknowledges the continuing dominance of formalism in legal practice and education.

Yes, of course, but formalism’s pervasiveness is precisely the problem, according to Woodcock. Lawyers and judges engage in analysis that amounts to verbal smoke and mirrors. Formalism’s reality is unreality. One cannot divine property rights by consulting sacred texts; one must examine the things as they function in the real world. I am sympathetic to this line of thought, but one should be careful not to run with it too far. Use in judicial opinions is use in the real world. The judge understanding the internal development of a concept is an effect in the real world. This is not an argument that judges or policy makers—or god help us, law professors—should ignore effects outside the courtroom. Only that effects inside (the head) matter, too.

Sometimes these internal effects are significant. Where, for example, formalism provides a compelling account of law’s doctrines or rules. Explanatory power is not only reason-giving, but reason-making. Realists should take note because many of realisms offshoots can’t fully explain law.[19] Realism, at least less sophisticated versions, necessarily leaves out important conceptual features by its criticism of them as window-dressing. Worse still, it regards central features of law as distractions or, as in the case of morality, hopelessly empty. In economic analysis of tort law, for example, the idea of corrective justice is nowhere to be found. Yet this concept animates the principal features of the doctrine.[20] Mossoff’s analysis is in a similar vein: it tries to account for why, internally, the laws are the way they are. Maybe it doesn’t succeed. But this is something economic analysis, and much of realist scholarship, cannot do.

Is this reality? It sure feels like it. The problem realists have with this reality is that it tends to obscure the dynamics of power, privilege, and so on. But so does economic analysis of law. What realism teaches is not that the economic method will give us the answers that we want, but that the language of economics performs the same sleight of hand as legal formalism. Ideology infects the terminology and structure of economics—and, consequently, its application to law—to such a large degree that its most basic and foundational concepts (e.g., efficiency, markets) are taken as proper starting points for analysis. The realist dares not make any such assumptions: pressing on these tender spots in the skin of economic analysis reveals the rot that lies underneath. When the skin breaks and the realist peers inside, she sees that theoretical debates about terminology and its application have about as much impact on the infection as debating whether trademarks are property in the formalist picture. The indeterminacy of economic analysis must be confronted along with the indeterminacy of formalism.

This problem is not limited to economic analysis of law. Even the more general consequentialist picture, one to which I am somewhat partial, has its own schemata, which, like so many others, can’t help but become all-encompassing. When one attempts to assemble a consequentialist version of ethics or law, she quickly begins to make accommodations to non-consequentialist reasoning.[21] To shield consequentialism from the attacks of deontology, however, consequentialism has an automatic “vacuum cleaner” that can suck-up any non-consequentialist attacks: any non-consequentialist theory can be “consequentialized.”[22] If this is true, then we are left with a theory so encompassing and far-reaching it offers no meaningful concrete guidance; indeed, since the vacuum cleaner can suck up almost any deontological theory (or value), consequentialism itself falls victim to the kind of charge realists are accustomed to making: it doesn’t capture the reality it deems so important.

IV. Conclusion

Despite its shortcomings, formal conceptual analysis, just as economic analysis or critical legal studies, does have value. It tells us about the nature of our conceptual structures, why we rely on them, and whether these assumptions should be revisited. In short, it is part of the legal realist project, even if its prescriptions may not be. More than that, though, formalism has an interesting and important reality-based feature: it doesprovide judges with an internal reason—a reason judges count as significant—to accept its conclusions, or at least consider them seriously. These reasons are not just window-dressing; they can act as real constraints.[23]

Woodcock is too quick to wave off conceptual analysis as irrelevant in the new age of empirically-driven law. At the same time that Woodcock recognizes that legal disputes are driven by the formal legal analysis, he notes that legal realism has destroyed this method of decision-making. Maybe law is outgrowing its formalist britches, but its practitioners still need to wear pants. We might laugh when one tries to determine the fundamental attributes of property in the same way philosophers now laugh at the quest to identify the essence of a table. But in the real world, the former impacts people’s lives while the latter makes no difference whatsoever.[24] Better to be measured about the whole thing than to throw out old clothes before the new ones have arrived. If Mossoff offends legal realists, then, it may be because they have caught a glimpse in the mirror. 

---

* Project Researcher, Hanken School of Economics; Visiting Assistant Professor, University of Kansas Law School; Ph.D. candidate, University of Cambridge. Thanks to Brian Frye for comments and suggestions.

[1] Title adapted from Joseph William Singer, Legal Realism Now, 76 Calif. L. Rev. 465 (1988).

[2] Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935).

[3] Thomas C. Grey, Holmes and Legal Pragmatism, 41 Stan. L. Rev. 787, 822–824 (1989) (“Since the heyday of the Realists, legal thinkers have tended to assume that legal taxonomy and conceptual doctrine-building necessarily rest on Langdellian premises. Behind this assumption often lies the instinctive nominalism, or cult of the concrete, that denies all practical importance to generalization and abstraction. Yet no pragmatist[, including Holmes,] would endorse such an antipathy to generalization.”); see Singer, supra note 1, at 470-72 (noting that even realists acknowledged the usefulness of generalizations in certain circumstances).

[4] Adam Mossoff, Trademark as a Property Right, 107 Ky. L.J. 1 (2018).

[5] Ramsi A. Woodcock, Legal Realism: Unfinished Business, Ky. L.J. Online (2019).

[6] Brian L. Frye, Metaphors on Trademark: A Response to Adam Mossoff, “Trademark as a Property Right”, Ky. L.J. Online (2019).

[7] See Hanoch Dagan, Reconstructing American Legal Realism & Rethinking Private Law Theory 17-67  (Oxford Univ. Press 2013), for a general review of legal realist themes.

[8] Critical Legal Studies (James Boyle, ed., N.Y. Univ. Press 1992).

[9] See, e.g., Louis Kaplow & Steven Shavell, Fairness versus Welfare (Harv. Univ. Press 2006).

[10] The two standard versions of efficiency are Kaldor-Hicks and Pareto Efficiency.

[11] Richard A. Posner, The Problematics of Moral and Legal Theory (Harv. Univ. Press 2009). We should, though, remind ourselves that Posner and the formalists both share the dubious honor of proclaiming their preferred method a “science.”

[12] See David A. Simon, Problems in Theory: Intellectual Property (forthcoming 2019-2020) (manuscript on file with author).

[13] See Richard A. Posner, Law, Pragmatism, and Democracy (Harv. Univ. Press 2005); Richard A. Posner, The Problematics, supra note 11. Posner’s version of judicial pragmatism, and many other versions, grew out of the philosophical school of pragmatism. See Simon, supra note 12.

[14] Realism never claimed to reduce judges to charlatans. It sought to illuminate the factors other than formal legal analysis that influenced judicial decision-making. See Singer supra note 1, at 470-75. Yet this produced a puzzle: how does one engage in legal analysis without “reverting to . . . formalism . . . or reducing all claims to the raw demands of interest groups?” Id. at 468. The question is “so hard that judges and scholars often reassert central elements of formalist reasoning they had hoped to discard.” Id.

[15] John Searle, the Construction of Social Reality 27 (1995) (explaining that “brute facts” are those facts that exist independently of human institutions, and “institutional facts” are those that exist in virtue of human institutions, and also distinguishing the statement of brute facts, which requires the human institution of language, from the stated brute facts, which exist independently of language).

[16] Guido Calabresi and A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev.1089 (1972).

[17] Plato, The Republic (Page, Capps, & Rouse eds., 1937).

[18] Woodcock, supra note 5, at 8.

[19] Here, I am thinking mainly of economic analysis of law.

[20] See Jules Coleman, The Practice of Principle (1999). See also Jules Coleman, Risks and Wrongs (1992).

[21] Simon, supra note 12.

[22] David McNaughton & Piers Rawling, Agent-Relativity and the Doing-Happening Distinction, 63 Phil. Stud.: An Int’l J. for Phil. in the Analytic Tradition167–185 (1991). But see Campbell Brown, Consequentialize This, 121 Ethics749 (2011). See, for example, Stephanie Bair, Rational Faith: The Utility of Fairness in Copyright, 97 B.U. L. Rev. 1487 (2017), for attempts at this in IP scholarship. See Simon, supra note 12, for an explanation of why this approach doesn’t succeed.

[23] This is true even in the Court that has the most opportunity and freedom to make policy in the guise of law. See, e.g., Ryan C. Black & Ryan J. Owens, Agenda Setting in the Supreme Court: The Collision of Policy and Jurisprudence, 71 J. of Pol. 1062 (2009). As noted before, even realists didn’t really claim that judges were unconstrained – but rather they were constrained by factors other than law. In particular, they argued that formalism provided cover for the influence of these extra-legal factors.

[24] I don’t mean to suggest that philosophy makes no meaningful contribution to people’s lives, or has not influenced how people think or how, for that matter, science proceeds. But at least in this example, there is no import in a legal setting how this might make a difference.

Legal Realism: Unfinished Business

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Legal Realism Unfinished Business Download

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

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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Throwing the Challenge Flag on the NFLs Collective Bargaining Agreement Download

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. 

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[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.

Circuit Split: An Efficient Rule to Govern the Sampling of Sound Recordings

CIRCUIT SPLIT: AN EFFICIENT RULE TO GOVERN THE SAMPLING OF SOUND RECORDINGS

Article | 106 KY. L. J. ONLINE | January 26, 2018

Spencer K. Gray[1]

On June 2, 2016, the Ninth Circuit Court of Appeals held that a horn hit lasting less than a quarter of a second, which had been physically copied from a copyrighted sound recording and subsequently modified, did not constitute actionable copyright infringement.[2] The Ninth Circuit opinion stands in direct opposition to the Sixth Circuit rule that any physical copying and use of a copyrighted sound recording constitutes actionable infringement, regardless of how small or whether the sample is modified. [3] No other circuit has addressed the issue of whether a de minimis copying constitutes infringement of a copyrighted sound recording.[4] In order to encourage the creative development of music in America and to protect individual property rights, an efficient and equitable rule for the sampling of sound recordings is necessary.

I. Introduction

“He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” – Thomas Jefferson [5]

The purpose of federal copyright law is “[t]o promote the Progress of Science and useful Arts.”[6] Intellectual property law is operating efficiently when it protects individual property rights and leaves room for creative growth. Musical creations that are truly original are exceedingly rare; a natural consequence of the reality that there exists a finite amount of musical notes and orders in which to organize them. Yet musicians continue to expand the public domain of music and create new works of art through a variety of methods, including “sampling.”Sampling is defined as “the actual physical copying of sounds from an existing recording for use in a new recording, even if accomplished with slight modifications such as changes to pitch or tempo.” [7] Sampling may be advantageous to a musician for a number of reasons, including lowering production costs. For example, a burgeoning musician who wishes to utilize a drum break in their song may not be able to afford to hire a studio drummer to participate in a recording session, but may be able to copy a drum break that was previously recorded and copyrighted by someone else. This hypothetical also illuminates the argument for protecting the original musician from un-compensated sampling: the musician has invested time and money into the original production of the drum break, and allowing others to benefit financially from their investment would deter future investments in the creation of music. Although the veracity of this “tragedy of the commons” justification for the protection of sound recordings or intellectual property generally is worthy of debate, it is necessary for the purposes of this Note to assume that the protection of sound recordings is justified. But the question remains: how and to what extent should the recordings be protected?While the horn hits at issue in VMG Salsoul, LLC v. Ciccone may have been quite small, they have resulted in substantial litigation and have illuminated an important legal issue that American courts are faced with today: should the physical copying and use of a copyrighted sound recording constitute infringement as a bright line per se rule, or, alternatively, should courts consider the de minimis, fair use, or substantial similarity defenses which have traditionally been applied in sound recording infringement cases? [8]The Sixth Circuit has chosen to adopt a bright line rule that any and all copying and use of even small or relatively insignificant portions of a sound recording is copyright infringement. [9] This rule reflects a policy decision that prioritizes individual property rights and independent creation, perhaps to the detriment of “collaboration and the custom of borrowing in the performance of music.” [10] In its opinion, the Sixth Circuit Court reasoned that the “music industry, as well as the courts, are best served if something approximating a bright-line test can be established.” [11] In order to reach its conclusion that any and all copying of a protected sound recording was copyright infringement regardless of the size or intensity of the duplication, the court’s analysis was largely dependent on a “literal reading” approach to the interpretation of federal statutes governing copyright infringement. [12]The Ninth Circuit, on the other hand, has opted to extend the de minimis requirement of copyright law to the sampling of sound recordings. A use of a sound recording is de minimis “only if the average audience would not recognize the appropriation.” [13]According to the Ninth Circuit Court of Appeals, “[w]hen considering a claimed infringement of a copyrighted sound recording, what matters is how the musicians “played” the notes, that is, how their rendition distinguishes the recording from a generic rendition of the same composition.” [14]Section I of this Note provides an introduction to the issue of sampling as it pertains to copyright infringement. Section II of this Note sets forth the scope of the Note and further explains what sampling is and how the copyright protection of sound recordings differs from that of musical compositions. Section III of this Note explains the importance of developing a rule to efficiently govern the sampling of sound recordings, especially due to the increased prevalence of sampling in the modern music industry. Section IV of this Note explains the de minimis exception to copyright infringement. Section V of this Note provides an in-depth analysis of Ciccone and Bridgeport Music in order to evaluate the merits of the courts’ respective opinions. Section VI of this Note provides an analysis of the proper statutory interpretation, considers public policy concerns, and recommends what action the Supreme Court should take to resolve this issue.. As noted infra, the Supreme Court may be unable to reach an appropriate solution and Congressional action may be necessary. Therefore, this Note will end by suggesting Congressional action that may result in an efficient rule for the sampling of sound recordings.

II. Scope of Argument

            Before determining what rule should govern the unauthorized sampling of music, it is necessary to first understand exactly what “sampling” is. In general, “sampling involves the use of a small segment of an existing sound recording in a new sound recording.”[15] When a musician writes down a song, including the lyrics and composition, the composition of that song immediately enjoys copyright protection. [16] However, musical compositions and sound recordings are considered to be two separate and unique pieces of intellectual property under copyright law. [17] The distinction between the composition and the recording may not be intuitive at first, but it is essential to understand for the purposes of developing an efficient rule for the copyright protection of music. In 1991 the Supreme Court of the United States outlined the elements of a copyright infringement claim as: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”[18]This Note is not concerned with the copyright protection of musical composition. The musical composition consists of the “music” (the unique arrangement of musical notes creating the sound) and any words that are associated with the song.[19] While the protection of a musical composition presents its own unique issues, it is sufficient for the purposes of this Note to recognize that this is a separate and distinct component of intellectual property law, and that the duplication of a musical composition is only actionable if it is legally significant.[20] Instead, this Note is concerned with sound recordings. The term “sound recording” refers to “a specific performance of a composition, as affixed in a recording medium . . ., that serves as the ‘raw audio source used by the sampling musician.’”[21] In other words a sound recording is the actual physical (whether digital or otherwise) recording of the sounds that together comprise the musical work. The copyright of the musical composition and the copyright of the sound recording are two separate and distinct bundles of rights, and as such “the rights of a copyright in a sound recording do not extend to the song itself, and vice versa.”[22] A single recording company usually owns the sound recording, not the musician who created the composition.[23]To illustrate the difference between a musical composition and a sound recording, it may be helpful to analogize to the copyright protection enjoyed in by a novel. In this metaphor, musical composition copyright would protect the plot, setting, characters, and arrangement of words that comprise the novel. The sound recording copyright, on the other hand, would protect the physical book including the cover, bindings, and the pages themselves. Copyright law does not protect physical books in this manner, but does protect sound recordings.[24]This Note is only concerned with the literal copying of a physical sound recording, or the copying of a portion of a music file. The individual who copies the sound recording will often modify it in some way, possibly by slowing it down, speeding it up, or even changing the order of notes. [25] It is critical to point this potential for modification out because sampling does not include simulation or imitation but instead is limited to “the actual use of the copyright owner’s original work.”[26] Thus, while in some jurisdictions a musician is prohibited from directly copying a single “horn hit” from a sound recording, in every jurisdiction that same musician is free to pick up a horn and attempt to play the “horn hit” in the same way to produce the same sound. [27]

III. Importance

            The practice of sampling is used throughout the music industry. [28] The practice is especially widespread in genres such as hip hop and rap.[29] Additionally, sampling is regularly used in marketing campaigns. [30]In order to illustrate the degree to which the unauthorized sampling of sound recordings has permeated contemporary culture, it is helpful to consider the story of the “Amen Break.” The “Amen Break” is a six second drum-beat, or break-beat, that has been sampled from a 1969 song titled “Amen, Brother.” [31] While the original song was not particularly popular, the sample of the break-beat has seen an emergence in popularity since the late 80’s with the rise of hip hop. [32] The song was used in several hip hop and rap songs during this period, including NWAs “Straight Outta Compton.” [33]  Around the same time that NWA released “Straight Outta Compton,” a sub-genre of rave music called “Ragga Jungle” became popular in the United Kingdom.[34] Ragga Jungle centered its aesthetic almost entirely on sampling the Amen Break.[35] The Amen Break demonstrates the influence that music sampling can have on contemporary culture: A six second drum loop taken from the B-side of a 1969 funk and soul single has spawned hundreds of unique tracks, supported a number of clubs and the careers of dozens of Disc Jockeys, and has given rise to a subculture of the UK rave phenomenon in the late 1980s and early 1990s. [36] The band that created the single that the Amen Break was sampled from has never pursued any claim for copyright infringement. [37]Judicial economy is another important concern to consider when formulating a rule to govern the sampling of sound recordings without permission. Sampling was rarely litigated until recently; instead most parties chose to settle when there was a dispute. [38] However, as the law around sampling continues to develop, the use of digital sampling becomes more widely used; and considering the statutory guidance that is now available, it is likely that sampling cases will increase exponentially.[39] The lack of an efficient rule governing the unauthorized sampling of sound recordings threatens to flood courts with litigation.The strict liability standard set forth in Bridgeport may have a nation-wide effect on the creation of sound recordings because successful recordings are distributed across the United States.[40] The adoption of an efficient and uniform rule to govern the unauthorized sampling of sound recordings is important because money, the balance of personal property interests, the cultivation of creative development, collaboration, and the public domain of music are all at issue.

IV. The De Minimis Rule

            The rights associated with a copyright are generally not absolute. Over one hundred years ago, Judge Chatfield explained: “Even where there is some copying, that fact is not conclusive of infringement. Some copying is permitted. In addition to copying, it must be shown that this has been done to an unfair extent.”[41] The term “de minimis” is derived from the legal maxim “de minimis non curat lex” which roughly translates to “the law does not concern itself with trifles.”[42] In other words, the de minimis rule stands for the proposition that a court will not impose liability on an unauthorized appropriator of copyrighted property if the average audience would not recognize the appropriation.[43]Although those who duplicate sound recordings may modify the recordings in a number of ways, such as changing the speed, distorting the sounds contained in the recording, or even changing the order or arrangement of sounds, it does not necessarily follow that the modification will prevent copyright infringement.[44] Thus, there is a large and unpredictable grey area in the law about what copying will be de minimis, and what copying will be substantially similar. Unless an appropriation is legally substantial, a court applying the de minimis rule will not find that copyright infringement has occurred. Generally, a claim for copyright infringement will fail unless the copying is substantially similar.[45]

V. The Split

A. The Sixth Circuit

In March of 2005 the United States Sixth Circuit Court of Appeals attempted to resolve the issue of what rule should govern the unauthorized sampling of sound recordings.[46] The seminal case in the Sixth Circuit is Bridgeport Music, Inc. v. Dimension Films. The dispute in Bridgeport arose out of the use of a sample from “Get Off Your Ass and Jam” in the song “100 Miles and Runnin,’” which was then used in the soundtrack of I got the Hook Up, a movie released by defendant No Limit Films in 1998.[47] Particularly of interest to this Note are the claims of Westbound Records against No Limit Films.Westbound Records is a company in the business of recording and distributing sound recordings, and is the entity who possessed a copyright ownership interest in the sound recording which was sampled in “100 Miles and Runnin’.” [48]  The sample in controversy is a two second sample of a guitar solo that was “copied, the pitch was lowered, and the copied piece was ‘looped’ and extended to 16 beats.”[49] Westbound Records argued that the sound recording of the guitar solo from “Get Off Your Ass and Jam” had been literally copied and used in the song “100 Miles and Runnin’” which was in turn included in the Defendant’s movie soundtrack I Got the Hook Up.[50] In response to Westbound Records’ claims, No Limit Films presented two arguments: (1) That copyright law could not protect the sound recording that had been copied because it was not “original”; and (2) “that the sample was legally insubstantial and therefore does not amount to actionable copying under copyright law.”[51]While the District Court was not persuaded by No Limit Films’ argument that the sound recording was not “original,” the court concluded, based on a de minimis analysis or a “fragmented literal similarity” test, that no reasonable jury could find that the sampling rose “to the level of a legally cognizable appropriation.”[52] It is particularly noteworthy that on appeal Westbound Records did not challenge whether or not a jury could find a legally cognizable appropriation, but instead argued that it is immaterial whether or not the appropriation was de minimis because no such inquiry “should be undertaken at all when the defendant has not disputed that it digitally sampled a copyrighted sound recording.”[53] In other words, Westbound Records did not argue that the District Court had been negligent in its application of the de minimis test, but rather that the test should never have been applied in the first place.Although the Sixth Circuit Court of Appeals did ultimately agree with Westbound Records that the de minimis test should not have been applied, the court relied on an analysis that is separate and distinct from the arguments presented by the plaintiff.[54] The analysis of the court centered on a statutory interpretation of Sections 114 and 106 of Title 17 of the United States Code.[55] These statutes will be discussed in depth below, but for now it is sufficient to understand that together the statutes undoubtedly prohibit pirating or copying an entire sound recording.[56] The Sixth Circuit Court of Appeals noted in Bridgeport Music that it is clearly impermissible to pirate an entire sound recording, and then proceeded to address the issues of whether or not it is permissible to sample something less than the whole sound recording without violating the relevant statutes.[57]In order to answer whether or not it is permissible to sample something less than an entire sound recording, the Sixth Circuit Court focused on the language of the governing statutes.[58] Specifically, the court focused on the inclusion of the word “entirely” in Section 114(b) of Title 17 the United States Code. [59]The relevant portion of Section 114(b) places limitations on the rights the owner of a sound recording enjoys. According to the statute, the copyright owner of a sound recording does not have rights that “extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.”[60] This clause of the statutes allows for a musician to listen to the sound recording, and attempt to imitate or simulate the notes that are played on the sound recording so long as the musician does so using her own instruments and recording equipment. The court interpreted the inclusion of the word “entirely” to stand for the proposition that an imitating musician may not literally (physically) copy any portion, no matter how small or insignificant it is to the overall recording. Put differently, the court interpreted the aforementioned clause to stand for the proposition that “a sound recording owner has the exclusive right to ‘sample’ his own recording.”[61] Thus, the Sixth Circuit adopted the rule that unauthorized sampling, regardless how small or seemingly insignificant, is copyright infringement as a matter of law.There is a legitimate question as to why sound recordings should be afforded more copyright protection than musical compositions. The Sixth Circuit Court of Appeals offered two justifications for this distinction.[62] First, a literal reading of the governing statute mandates a per se rule for sound recordings, but does not do so for musical compositions.[63] Second, “even when a small part of a sound recording is sampled, the part taken is something of value.”[64] In other words, sampling a sound recording constitutes a physical taking.[65]The Sixth Circuit offered several justifications for the adoption of a new rule. First, the court explained that there is support for a per se rule in several law review and other published texts.[66] Second, the court argued that the new rule will not have a substantial effect on the practices of the music industry because many artists and companies have already adopted the policy of seeking licensing as a matter of course, many artists who sample without seeking licenses will continue to do so, and because pre-1972 sound recordings are not afforded federal copyright protections.[67] Third, the music industry has the ability to develop its own licensing guidelines if it chooses. Finally, the court identifies that “[t]he legislative history [of federal copyright protection statutes] is of little help because digital sampling wasn’t being done in 1971” and therefore the best approach to this issue is a “literal reading” of the statue.[68]

B. The Ninth Circuit

In June of 2016, the Ninth Circuit Court of Appeals attempted to resolve the issue of what rule should govern the unauthorized sampling of sound recordings.[69] The seminal case in the Ninth Circuit is VMG Salsoul, LLC v. Ciccone. The dispute in VMG Salsoul arose out of the artist Madonna’s use of a 0.23 second “horn hit” in her hit song “Vogue.”[70] Madonna physically copied the horn hit from an early 1980s instrumental song titled “Ooh I Love It” without permission from the copyright owner.[71]The defendant in VMG Salsoul presented identical defenses as the defendant in Bridgeport Music, asserting that the sound recording of the sampled music was not “original” for copyright law purposes, and that even if the court determined the sampled sound recording to be “original” for the purposes of copyright law, that the sampling was “de minimis or trivial” and thus exempt from copyright protection.[72] While the defendant disputes whether the physical copying of the song actually occurred, the court finds that when taking the facts in the light most favorable to the plaintiff a genuine issue of material fact occurred and thus the court must proceed to the next step of the analysis: assuming that the sampling did occur, does it constitute copyright infringement?[73] In order to answer this question, the court must determine both whether the de minimis exception to copyright infringement applies to sound recordings, and if so, whether or not the infringement in this case is de minimis.In order to answer the question of whether or not the de minimis exception applies to sound recordings, the court begins by noting that courts in the Ninth Circuit have recognized “the response of the ordinary lay hearer” as an essential part of the copyright infringement test.[74] The court also explains that a copyright owner’s legally protected interest is the potential financial return for her creation.[75] Because any potential financial return linked to the copyright owner’s intellectual property is necessitated upon the approval or praise of the public or consumers, if the consumers are unable to recognize the appropriation then “the copier has not benefited from the original artist’s expressive content” and thus no infringement has occurred.[76] In other words, the court reasoned that harm to the creator of the sound recording is dependent upon public recognition of the origins of the recording.Next, the court engages in an exercise of statutory interpretation to determine what Congress’ intent was in creating federal copyright protection. The court begins its analysis of the relevant statutes by highlighting that the text of 17 U.S.C. §106 “Exclusive rights in copyrighted works” does not suggest any differential treatment between any mediums of intellectual property, including sound recordings.[77] Therefore, if the de minimis exception applies to any one medium then there is no occasion to believe Congress intended not to extend the exception to the others.[78] Second, the court addresses 17 U.S.C. §114(b), the provision on which Bridgeport Music relied most heavily in formulating a per se copyright infringement rule for sound recordings. The VMG Salsoul court is highly critical of the Bridgeport Music court’s interpretation of the statute, explaining that “[w]e ordinarily would hesitate to read an implicit expansion of rights into Congress’ statement of an express limitation on rights.”[79] Unlike the court in Bridgeport Music, the Ninth Circuit court considered the §114(b) legislative history in determining congressional intent.[80] Specifically, the legislative history states that copyright infringement occurs when all or “any substantial portion of the sounds that go to make up a copyrighted sound recording are reproduced in phonorecords by repressing, transcribing, recapturing off the air, or any other method.”[81] Further, the VMG Salsoul court asserts that the 6th circuit rule relies upon a logical fallacy: inferring the inverse of a conditional from the conditional.[82] In other words, the Sixth Circuit is interpreting the statute as an extension of property rights whenever a sampling is not comprised of only independent fixations of other sounds. The Sixth Circuit asserts that this portion of the statute does not operate to create any property rights for the creator of the sound recording but instead ensures that musicians who sample through the use of only independent fixations of other sounds (i.e. their own instruments) will be protected from copyright infringement law suits. This alleged fallacy is discussed in greater depth infra.[83] Even under the Sixth Circuit’s interpretation, there may remain a legally significant infringement claim based upon the appropriation of musical composition but that is outside the scope of this Note. The Ninth Circuit relies on statutory interpretation to determine that Congress intended for the de minimis exception to copyright infringement to be extended to sound recordings.[84]Once the court determined that the de minimis exception to copyright infringement applied to sound recordings, the court began its analysis of whether the sampling in controversy was de minimis.[85] Notably, expert musicians who listened to the two tracks were unable to determine what portions of the recording had been copied.[86] Thus, the court held that because an average audience would be unable to recognize what portions of the original sound recording had been copied, the sampling was de minimis and did not constitute copyright infringement.[87] The Ninth Circuit is not alone in imposing de minimis requirements to sound recordings.[88]

VI. Analysis

A. Statutory Interpretation

      Because both VMG Salsoul and Bridgeport Music based their decisions primarily on statutory interpretation, the United States Code is the best place to begin the search for a resolution to this circuit split. Title 17 of the United States Code is the federal statutory law governing copyright protection. [89]Section 102 of Title 17 announces what subject matter is afforded copyright protection under federal law; sound recordings are protected.[90] Next, section 106 of Title 17 sets forth the rights that are afforded to the owners of copyrighted works; subsection 6 pertains specifically to sound recordings and grants the exclusive right to “perform the copyrighted work publicly by means of a digital audio transmission” to the creator of the sound recording.[91] Finally, sections 107 through 122 place limitations on the exclusive rights that are granted under section 106, with section 114 specifically placing limitations on the rights enjoyed by sound recording owners.[92]Essentially all of the debate over whether or not a per se infringement rule is statutorily mandated derives from differences of interpretation of section 114(b) which states in relevant part:

The Exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording. (emphasis added)[93]

The natural reading of this clause simply states that an individual is free to imitate or simulate a sound recording without incurring liability for copyright infringement. The Bridgeport Music court instead read this clause as an expansion of the copyright holder’s rights.[94] This result was reached through the use of a logical fallacy. To illustrate the fallacy, consider the proposition enumerated in section 114(b): If entirely independent fixation of other sounds, then copyright protection does not extend. The Bridgeport Music court then formulated the following as what is in fact a false contrapositive of the above proposition: If not an entirely independent fixation of other sounds, then protection does extend.[95] The correct contrapositive of the proposition, however, is the following: If protection does extend, then it is not an entirely independent fixation of other sounds. The statute itself does not offer any guidance on whether liability is incurred when a fixation is not entirely independent, as Bridgeport Music suggests it does, because reliance on this reasoning would be committing the fallacy of inferring the inverse of a conditional from the conditional.[96]Although Bridgeport’s interpretation of the §114(b) may be one-of-a-kind, the statutory language itself is not unique. A comparable provision limiting the rights of copyright holders against libraries may be found at 17. U.S.C. §108(e).[97] §108(e) states:

The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her requests or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord or the copyrighted work cannot be obtained at a fair price… . (emphasis added).[98]

If a library copies a single sentence from the novel Blood Meridian, will Cormac McCarthy be successful in a copyright suit even though the library did not copy “the entire work, or . . . a substantial part of it?”[99] Under Bridgeport’s interpretation, even if the library were to copy the word “he” from page 141 of Blood Meridian, the library would be liable for copyright infringement.[100] Under the Ninth Circuit’s interpretation, copying the word “he” would not be infringement because no one reading the copy could identify the word as being derived from Blood Meridian.[101]While the Bridgeport Music court dismisses the statute’s legislative history because sampling was allegedly not in practice at the time of enactment, other forms of direct copying were available and therefore the legislative history should be considered. The legislative history of section 14(b) includes the following:

Infringement takes place whenever all or any substantial portion of the actual sounds that go to make up a copyrighted sound recording are reproduced in phonorecords by repressing, transcribing, recapturing off the air, or any other method, or by reproducing them in the soundtrack or audio portion of a motion picture or other audiovisual work. (emphasis added)[102]

This sentence from the legislative history is important for two reasons: (1) it enunciates that the drafters of section 14(b) did not intend an all or nothing application but instead intended the substantiality of literal copying to be considered; and (2) the drafters of section 14(b) recognized that literal copying was already possible and left room for the statute to apply to new technologies or other methods of copying that would come in the future[103]. Such an interpretation has found support in federal court.[104]Thus, when considering the plain language of section 114(b) in conjunction with the overall statutory scheme of Title 17 and the accompanying legislative history, it is apparent that the Bridgeport Music court’s statutory justification is misplaced. Accordingly, congressional intent in drafting federal copyright law was not to hold individuals who literally copy sound recordings liable for copyright infringement as a matter of law. Instead, it appears that congress intended the substantiality of the duplication and reuse to be a factor of consideration in a copyright infringement case.

B. Policy Concerns

            The most logical statutory interpretation may lead to the application of the de minimis rule, as suggested by the Ninth Circuit Court of Appeals in VMG Salsoul, but this does not necessarily solve the public policy need for an efficient rule. The concern of judicial economy still exists, and those who sample will be less likely to settle out of court with plaintiffs if they know that they have the de minimis defense  at their disposal. There is also a need for the music industry to have a rule that will lead to consistent results in litigation, because it will allow artists to price the risk of having a judgment against them ex ante and thereby decide if it is less expensive to go the route of licensing.Alternatively, it has been argued that the de minimis rule promotes judicial economy.[105] The argument is supported be the notion that plaintiff’s are less likely to seek legal recourse if they are afraid that the court will absolve the defendant of liability pursuant to the de minimis defense.[106] Likewise, the argument may be made that a per se rule actually creates more litigation because plaintiffs will sue much more often knowing that the defendant does not have access to the defense of the de minimis rule.[107]Whatever rule is adopted should not stifle creativity. The per se rule formulated by the Sixth Circuit appears to stifle creativity on its face, although the court in Bridgeport Music offered several arguments as to why this would not be the result. First, a bright line rule such as this one promotes ease of enforcement.[108] Second, the free market will necessarily ensure that license prices are efficient.[109] Finally, unlike the infringement of musical composition copyright, infringement through the sampling of a sound recording is never accidental.[110]There are also concerns of the de minimis rule’s effects on creativity. Allowing for nearly unchecked copying could act as a deterrent for the creation of truly new works of music. Some have argued, however, that no artwork can truly be “original” because all artists rely so heavily on the inspirations and influences they receive from other artists.[111]

C. Resolution – U.S. Supreme Court

            The United States Supreme Court should resolve this circuit split by adopting the Ninth Circuit’s interpretation of this issue. The correct interpretation of the relevant statutory scheme does not create a per se copyright infringement rule for the physical sampling of sound recordings, as the Sixth Circuit suggests. Instead, the statutes leave room for the application of the common law doctrine of the de minimis rule.While Congress has not created a special category of per se copyright infringement for sound recordings, the U.S. Supreme Court could deem the de minimis defense to not apply to sound recordings on public policy grounds. Unfortunately, neither the Ninth Circuit nor the Sixth Circuit has clearly established an efficient rule. It is unclear what effect a per se rule would have on the music industry if applied nation-wide. The U.S. Congress is in a much better position to investigate and analyze the needs of the music industry than is the U.S. Supreme Court and therefore the Court should avoid engaging in judicial activism in the resolution of this problem. Instead the Court should adopt the Ninth Circuit’s interpretation and treat sound recordings as it treats other categories of intellectual property. In its opinion, the Court should emphasize that there is a need for Congressional action to resolve the need for an efficient rule regarding the sampling of sound recordings.

D. Resolution – Congressional Action

            Neither the approach adopted by the Ninth Circuit in VMG Salsoul nor that adopted by the Sixth Circuit in Bridgeport Music adequately addresses the need for an efficient rule to govern music sampling. Bridgeport Music’s bright-line rule approach, however, is a step in the right direction. In order to reach a satisfactory solution to the problem at hand, it is necessary to maintain the spirit of the Bridgeport Music decision while reaching a more practical outcome. The de minimis defense is not the appropriate measuring stick for the sampling of sound recordings because “[w]herever [the line] is drawn [to mark where de minimis] will seem arbitrary”[112] and will result in an overwhelming grey area in which musicians and recording companies would be forced to operate. Instead, this Note proposes that the United States Congress should enact compulsory licensing for all sound recordings.The Sixth Circuit may have been inhibited by its enumerated powers, but the Congress is both well equipped and Constitutionally mandated to solve this problem. The Sixth Circuit created a bright line rule: “Get a license or do not sample.”[113] With Congress’ help, this bright line rule can provide an equitable solution for all parties involved.The United States Congress should enact compulsory licensing for all sound recordings. Congress has already created a compulsory licensing system for some activities, such as the performance and distribution of “cover songs.”[114] 17 U.S.C. § 115 “authorizes any person who complies with its provisions to obtain a license to make and distribute phonorecords of a nondramatic musical work if: (1) the work has ‘been distributed to the public in the United States under the authority of the copyright owner; and (2) the person’s ‘primary purpose in making phonorecords is to distribute them to the public for private use.’”[115] Put simply, a compulsory system would allow anyone who wants to sample a song to do so by paying a set fee, which is regulated by the federal government, and by giving notice in compliance with the regulations. The system of compulsory licensing should allow any artist to sample any other artist’s music, for a set fee.[116] The fee would be set by a regulatory body and would be based on the fair market value of sound recordings. The fee should depend on a number of factors, including the length of the sample and its importance to the source material. The system should feature a notice requirement by which all owners of sound recordings would be served with notice of (and compensated for) the sampling of their recordings.[117]Limitations on the use of sound recordings should include maximum limits of duration, and limits on how many samples may be taken from a single artist, album, or recording.[118] However there should be no limitation on the manipulation of the sample, in order to foster creativity.[119] There should also be a variety of alternative payment methods to allow musicians who are lacking capital to participate legally. For example a young musician may agree to a congressionally approved royalty contract to share proceeds from the use of the sample.The compulsory licensing system would ensure that the courts are not flooded with litigation because non-licensed sampling would become copyright infringement as a matter of law. The system would foster the creative growth of the music community. And the compulsory licensing system would drastically cut down on transactional costs, creating a more efficient music industry.[120] The way music is made is evolving alongside technology; federal copyright laws must adapt accordingly. Unfortunately, there appears to be little support for the creation of a compulsory licensing system in Congress and in fact it is plausible that Congress may repeal the existing compulsory licensing system under Section 115.[121] Among other concerns, Congress has communicated concerns that while compulsory licensing for an entire musical score to be recreated by the licensee requires substantial time and resources to be expended by the licensee, allowing a similar system for the use of physical sound recordings would allow the licensee to profit off of the resources and time of the licensor.[122] Essentially Congress has voiced its concern that implementing a compulsory licensing system for sound recordings would result in a “tragedy of the commons” scenario.

VII. Conclusion

            In conclusion, there is a very important divide in the law governing the sampling of sound recordings. The American music industry is already highly dependent on the sampling of sound recordings, and it appears that the dependence will continue to increase in the years to come. American law is not currently equipped to efficiently deal with the copyright protections of sound recordings.The Ninth and Sixth Circuit Courts of Appeals have attempted to reach an efficient solution to the issue of sound recordings. The Sixth Circuit’s per se rule provides a bright line rule, but may stifle creativity and is based upon a faulty interpretation of the relevant statutory scheme. The Ninth Circuit’s application of the de minimis rule is consistent with the relevant statutory scheme and copyright common law in general, but may not be an efficient solution to the larger problem. The United State Supreme Court should address this circuit split and adopt the Ninth Circuit’s interpretation of the rule. However, it does not appear that a solution to this problem can be completely derived from judicial action. Congress, on the other hand, is capable of creating an efficient solution to the sampling conundrum.Congress should pass a statute creating a compulsory licensing system, similar to the system already in existence under Section 115, but applicable to the sampling of sound recordings. Such a system would allow for the continuing artistic development of the musical industry, would protect the property interests of copyright holders of sound recordings, and would promote judicial economy through the creation of a bright line rule. Though the problem may be complex, the solution is simpler: If you want to sample get a license. In order for this axiom to be applicable in the real world, Congress must ensure that licenses are reasonably available to those seeking them. This is accomplished through compulsory licensing.

---

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

[2]  VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 874 (9th Cir. 2016).

[3] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800–02 (6th Cir. 2005).

[4] Lesley Grossberg, A Circuit Split at Last: Ninth Circuit Recognizes De Minimis Exception to Copyright Infringement of Sound Recordings, Baker Hostetler: Copyright, Content, and Platforms (June 21, 2016), https://www.copyrightcontentplatforms.com/2016/06/a-circuit-split-at-last-ninth-circuit-recognizes-de-minimis-exception-to-copyright-infringement-of-sound-recordings/; but see id. (“almost every district court not bound by that decision has declined to apply Bridgeport’s rule.”) (quoting Ciccone, 824 F.3d at 886).

[5] Thomas Jefferson, Thomas Jefferson to Isaac McPherson, The Founders’ Constitution (Aug. 13, 1813), http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html.

[6] U.S. Const. art. I, § 8, cl. 8.

[7] Ciccone, 824 F.3d at 875 (citing Newton v. Diamond, 388 F.3d 1189, 1192 (9th Cir. 2004)).

[8] See, e.g., id. at 874.

[9] Tonya M. Evans, Sampling, Looping, and Mashing… Oh My!: How Hip Hop Music is Scratching More Than the Surface of Copyright Law, 21 Fordham Intell. Prop. Media & Ent. L.J. 843, 847 (2011).

[10] Id.

[11] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 799 (6th Cir. 2005).

[12] Id. at 805.

[13] Ciccone, 824 F.3d at 878 (quoting Newton v. Diamond, 388 F.3d 1189, 1193 (9th Cir. 2004)).

[14] Id. at 879.

[15] See 1 Lawrence A. Waks & Brad L. Whitlock, Texas Practice Guide Business Transactions § 4:274 (June 2017).

[16] See Gregory T. Victoroff, Music Sampling: Legal Overview, Practical Guidelines, 26 Beverly Hills B. Ass’n J. 134, 134 (1992).

[17] Id.

[18] Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

[19] See Astride Howell, SAMPLE THIS! A Ninth Circuit Decision to be in Harmony with the Sixth Circuit’s Bright-Line Rule on What Constitutes Infringement in Digital Sampling, L.A. L., Sept. 2005, at 24, 24; see also U.S. Copyright Office, Circular 56A, 1 (2017) https://www.copyright.gov/circs/circ73.pdf (“[there are two separate components of a musical work: the musical composition and the sound recording.] A musical composition consists of music, including any accompanying words. . . . A musical composition can be in the form of a notated copy (for example, sheet music); a phonorecord (for example, cassette tape, L.P., or CD); or a DPD. A sound recording, on the other hand, results from the fixation of a series of musical, spoken, or other sounds.”).

[20] See Newton v. Diamond, 388 F.3d 1189, 1192–93 (9th Cir. 2004).

[21] Thomas P. Wolf, Toward a “New School” Licensing Regime for Digital Sampling: Disclosure, Coding, and Click-Through, 2011 Stan. Tech. L. Rev. N1, N6-N7.

[22] Conway v. Licata, 104 F. Supp. 3d. 104, 120 (D. Mass. 2015) (quoting Newton v. Diamond, 204 F. Supp. 2d 1244, 1249 (C.D. Cal. 2002).

[23] See James A. Johnson, Thou Shalt Not Steal: A Primer on Music Licensing, N.Y. St. B. Ass’n J., June 2008, at 23, 23; see also U.S. Copyright Office, Circular 73, 2 (2017), https://www.copyright.gov/circs/circ73.pdf  (“The author of a musical composition is generally the composer and any lyricist. . . . The author of a sound recording is generally the performer(s) who captures and processes the performance to make the final recording.”).

[24] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800 (6th Cir. 2005).

[25] See Robert M. Vrana, The Remix Artist’s Catch-22: A Proposal for Compulsory Licensing for Transformative, Sampling-Based Music, 68 Wash. & Lee L. Rev. 811, at n. 64 (2011).

[26] See Tracy L. Reilly, Debunking the Top Three Myths of Digital Sampling: An Endorsement of the Bridgeport Music Court’s Attempt to Afford “Sound” Copyright Protection to Sound Recordings, 31 Colum. J. L. & Arts 355, 366 (2008).

[27] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800 (6th Cir. 2005).

[28] See Lucille M. Ponte, The Emperor Has No Clothes: How Digital Sampling Infringement Cases are Exposing Weaknesses in Traditional Copyright Law and the Need for Statutory Reform, 43 Am. Bus. L. J. 515, 516 (2006).

[29] Id. at n. 5, 516–17.

[30] See, e.g., Butler v. Target Corp., 323 F. Supp. 2d. 1052, 1054 (C.D. Cal. 2004).

[31] Nate Harrison, Can I Get an Amen?, YouTube (March 4, 2015), https://www.youtube.com/watch?v=B27ehDHTCmc.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] See Ponte, supra note 28, at 518.

[39] Id. at 518–19.

[40] Robert J. Bernstein & Robert W. Clarida, Circuit Split Creates Uncertainty in Sampling of Sound Recordings; Copyright Law, N.Y. L. J. Online (June 15, 2016).

[41] See W. Publ’g Co. v. Edward Thompson Co., 169 F. 833, 861–62 (E.D.N.Y. 1909) (emphasis added).

[42] See Ringold v. Black Entm’t Television, Inc., 126 F.3d 70, 74 (2d. Cir. 1997).

[43] See Fisher v. Dees, 794 F.2d 432, 434–35 n. 2 (9th Cir. 1986) (“a taking is considered de minimis only if it is so meager and fragmentary that the average audience would not recognize the appropriation.”).

[44] See United States v. Taxe, 540 F.2d 961, 964 (9th Cir. 1976).

[45] See generally Leigh v. Warner Bros., Inc., 212 F.3d 1210 (11th Cir. 2000); Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821 (11th Cir. 1982); Jarvis v. A&M Records, 827 F. Supp. 282 (D.N.J. 1993); Williams v. Broadus, 2001 WL 984714 (S.D.N.Y. Aug. 27, 2001); Tuff ‘N’ Rumble, Inc. v. Profile Records, Inc., 1997 WL 158364 (S.D.N.Y. Apr. 2, 1997); (This list is far from exhaustive, but is illustrative of the popularity of the de minimis or substantial similarity rule outside of the Sixth Circuit).

[46] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

[47] Id. at 794–96.

[48] Id. at 795.

[49] Id. at 796.

[50] Id.

[51] Id. at 796–97.

[52] Id. at 797.

[53] Id. at 798.

[54] Id. at 799.

[55] Id.

[56] Id. at 799–801.

[57] Id. at 800.

[58] Id. at 800–01.

[59] Id. at 800.

[60] Id. at 800.

[61] Id. at 800–01.

[62] Id. at 801–02.

[63] Id.

[64] Id.

[65] Id. at 802.

[66] Id. at 803.

[67] Id. at 804.

[68] Id. at 805.

[69] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016).

[70] Id. at 874.

[71] Id. at 875.

[72] Id. at 876.

[73] Id. at 877.

[74] Id. at 881 (quoting Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir. 1977)).

[75] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 881 (9th Cir. 2016).

[76] Id.

[77] Id. at 882.

[78] Id.

[79] Id. at 883.

[80] Id. at 883–84.

[81] Id. at 883.

[82] Id. at 884.

[83] See infra Section (VI)(A).

[84] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 882 (9th Cir. 2016).

[85] Id. at 880.

[86] Id.

[87] Id.

[88] See, e.g., Saregama India Ltd. v. Mosely, 687 F.Supp.2d 1325, 1338 (S.D. Fla. 2009).

[89] See 17 U.S.C. § 101–1301 (2004).

[90] 17 U.S.C. § 102(a)(7) (1990).

[91] 17 U.S.C. § 106(6) (2002).

[92] See generally 17 U.S.C. § 107–122 (1992); 17 U.S.C. § 114 (2010).

[93] 17 U.S.C. § 114(b) (2010).

[94] 4 Nimmer on Copyright §13.03[A][2][b] (2017).

[95] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800–01 (6th Cir. 2005).

[96] See Joseph G. Brennan, A Handbook of Logic 79–81 (2nd ed. 1961).

[97] 17 U.S.C. § 108(e) (2012).

[98] Id.

[99] 4 Nimmer on Copyright § 13.03 n. 114.14 (quoting 17 U.S.C. § 108(e)); Of course, this hypothetical assumes that the library is unable to obtain a copy of the novel for a fair price.

[100] See supra Section (V)(A) (Under Bridgeport, it would be of no consequence that no one reading the word “he” in the copy would be able to identify it as being derived from page 141 of Blood Meridian.).

[101] See supra Section (V)(B).

[102] H.R. Rep. No. 94-1476, at 106 (1976).

[103] See id.

[104] Saregama India Ltd. v. Mosely, 687 F. Supp.2d 1325, 1341 (S.D. Fla. 2009) (“There is no indication, however, that [Section 114(b)] relates to works which are not similar-sounding or that Congress otherwise sought to abandon the substantial similarity inquiry. Section 114(b)’s legislative history supports this view”).

[105] Jennifer R.R. Mueller, All Mixed Up: Bridgeport Music v. Dimension Films and De Minimis Digital Sampling, 81 Ind. L.J. 435, 454 (Winter 2006) (citing On Davis v. The Gap, Inc., 246 F.3d 152, 173 (2d Cir. 2001)).

[106] See id.

[107] Id. at 456–57.

[108] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005).

[109] Id.

[110] Id.

[111] See David M. Morrison, Bridgeport Redux: Digital Sampling and Audience Recoding, 19 Fordham Intell. Prop. Media & Ent. L.J. 75, 86 (Autumn 2008).

[112] Nichols v. Universal Pictures Co., 45 F.2d 119, 122 (2d. Cir. 1930).

[113] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005).

[114] See 17 U.S.C. § 115 (2010).

[115] Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 526 (9th Cir. 2008) (quoting 17 U.S.C. § 115(a)(1) (2010)).

[116] See Michael L. Baroni, A Pirate’s Palatte: The Dilemmas of Digital Sound Sampling and a Proposed Compulsory License Solution, 11 U. Miami Ent. & Sports L. Rev. 65, 94 (1993).

[117] Id. at 96; See also Circular 73 at 2 (“Section 115 does not cover sound recordings. Rather, it covers the reproduction and distribution of musical compositions.”)

[118] Baroni, supra note 117 at 95.

[119] Id.

[120] See Richard A. Epstein & F. Scott Kieff, Questioning the Frequency and Wisdom of Compulsory Licensing for Pharmaceutical Patents, 78 U. Chi. L. Rev. 71, 85–86, (2011) (“[Compulsory licensing] thus functions as a transaction cost–saving device that permits the rapid dissemination of copyrighted material. . . . This approach has resulted in transaction costs for the scientists that are lower than those of purchasing a can of soda from a vending machine.”).

[121] See Lucille M. Ponte, The Emperor Has No Clothes: How Digital Sampling Infringement Cases are Exposing Weaknesses in Traditional Copyright Law and the Need for Statutory Reform, 43 Am. Bus. L.J. 515, 549 (2006).

[122] Id. at 550.

Striking a Balance: Can Presumed Donative Consent End the Organ Shortage While Respecting Individual Autonomy?

Striking a Balance: Can Presumed Donative Consent End the Organ Shortage While Respecting Individual Autonomy?

Article | 106 KY. L. J. ONLINE | January 3, 2018

Jennifer L. Henry[1]

Introduction

            At age nineteen, Jessica Danielson was diagnosed with restrictive cardiomyopathy, a disease typically characterized by poor ventricular filling.[2] By age thirty, she lived out her days inside the walls of the Mayo Clinic, not allowed to leave or even be detached from her IV before receiving a liver and heart transplant.[3] Without the transplant, she would almost certainly die from the disease or suffer a heart attack.[4] In June 2014, after waiting over two years, she was fortunate enough to receive the double transplant and return home to Minnesota.[5] Unfortunately, success stories like Jessica’s are all too rare in the United States, where twenty people die while waiting on a life-saving organ transplant each day.[6] Currently, there are nearly 120,000 people on the waiting list.[7]The basic idea of organ transplantation predates modern medical science by thousands of years. Indian doctors had started to graft skin to repair wounds and burns by 800 B.C.[8] By the early 1900s, organ transplantation science had advanced significantly, beginning to resemble the process used to transplant organs today.[9] In 1905, an Austrian ophthalmologist performed the world’s first successful corneal transplant.[10] A team of surgeons at Boston’s Peter Bent Brigham Hospital performed the first successful kidney transplant in 1954 after a living donor donated his kidney to his identical twin.[11] 1963 marked the first organ recovery from a brain dead donor.[12]> The ability to procure organs from brain dead donors was a huge step forward in transplant science, eventually leading to the creation of organ donor registries in all fifty states.[13]Deceased donors can donate up to eight life-saving organs: the heart, lungs, kidneys, liver, pancreas, and intestines.[14] The Uniform Determination of Death Act defines death in two ways: (1) irreversible cessation of circulatory and respiratory functions or (2) irreversible cessation of all functions of the brain, including the brain stem.[15] Deceased donors must die under very specific circumstances that cause brain death; if the heart stops beating, blood flow stops and the organs are not preserved.[16]  Most deceased donors are patients who died in the hospital after suffering severe head trauma, an aneurysm, or a stroke.[17]The nuts and bolts of the organ donation process are complex. After a patient has stopped responding, doctors perform a series of tests to determine if brain death has occurred.[18] Once brain death has been confirmed, the patient remains on artificial life support to ensure blood flow to the organs.[19] Hospitals are required to notify the local Organ Procurement Organization of each patient who has died or is nearing death.[20] After receiving information about the deceased patient, the organ procurement organization decides whether she is a potential candidate for organ donation.[21] If the patient is a potential candidate, a representative from the organ procurement organization comes to the hospital.[22] The representative then checks the organ donor registry to see if the patient was a registered organ donor, and in the event that she was not, the representative seeks authorization for donation from the deceased’s next-of-kin.[23] Upon obtaining authorization from the next-of-kin or confirmation of the patient’s self-designation as an organ donor, the organ removal process begins.[24] The surgical team that removes the organs is never the same team of physicians who treated the patient before death.[25]Bleak statistics illustrate that the system of organ donation in the United States falls far short of meeting the demand for organs.[26] To become an organ donor in the United States, one must opt into the program; the process for doing so differs from state to state, but usually involves registering with the state’s Department of Motor Vehicles (DMV).[27] The number of registered organ donors varies widely from state to state. For example, in 2012, 80% of Alaskan adults were registered donors, compared to just 12.7% in New York.[28]The bottom line is that while public opinion toward organ donation is overwhelmingly positive, these sentiments do not translate into taking the affirmative steps necessary to actually become an organ donor. 95% of American adults support organ donation, but only 30 to 50% in any given state are registered organ donors.[29] This disparity demonstrates the continued existence of barriers to donor registration, or at the very least, the inadequacy of our current system.[30] The introduction of new, more effective legislation aimed at alleviating or eliminating the organ shortage crisis in the United States is vital.

Part I: Express Consent Organ Procurement in the United States

A.  The Uniform Anatomical Gift Act

In an attempt to remedy the dire shortage of organs available for transplant, the National Conference of Commissioners on Uniform State Laws adopted the first version of the Uniform Anatomical Gift Act in 1968.[31] The system created under this model law was one based on principles of “encouraged voluntarism.”[32] Under this system, the onus was on the individual to volunteer to donate his or her body parts to persons in need, for medical research, or for specific purposes upon death.[33] Encouraged voluntarism was praised because it “encourage[d] socially desirable virtues such as altruism and benevolence without running the risk of abusing individual rights.”[34]The UAGA’s purpose is “to allow anyone over the age of eighteen to be able to donate his/her entire body, or any part thereof, for organ donation if he/she has given the requisite written consent.”[35] The Act provides the process by which donors may make an anatomical gift, explains who may receive and make an anatomical gift, and facilitates communication between medical examiners, treating physicians, hospitals, and procurement organizations.[36] The Act was amended in 1987, and most recently in 2006. One of the important revisions to the act was the express prohibition of the sale or purchase of organs for transplantation, reading as follows: “. . .a person that for valuable consideration, knowingly purchases or sells a part for transplantation or therapy if removal of a part from an individual is intended to occur after the individual’s death commits a [felony]. . .”[37] This revision represents the first time such a prohibition was recognized by the Act.[38].Other amendments to the Act reflect a shift from encouraged voluntarism to systems of routine inquiry or required request. The addition of procedures for routine inquiry was aimed at addressing the failure of medical personnel to request organ donation from the decedent’s next-of-kin.[39] Although the Act requires that the decedent’s express wish to become an organ donor be honored, it has been noted that in practice, “even if the decedent has signed a document of gift, and such a document is on his person at the time of death, hospitals and organ procurement organizations will almost never retrieve organs without the consent of a person in the highest priority class available” (i.e. closest relative).[40] Under routine inquiry, a physician is required to notify the hospital of a potential organ donor.[41] Then, a member of the hospital’s medical staff discusses the option of organ donation with the deceased’s family members.[42]Under the Act, doctors may abstain from discussing with the deceased's family members if she makes a "subjective judgment that the family is too distraught to be confronted with the inquiry."[43]Routine inquiry and required request laws vary from state to state. The most stringent of such laws require hospital personnel to request donation and document the approval or refusal on the death certificate.[44] In contrast, weaker laws require hospitals to develop protocols to ensure that families are informed of their option to donate.[45] Laws requiring medical personnel to act assertively generally have higher success rates.[46]

B. Organ Donation in Kentucky

            Kentucky’s own organ donation law, first codified by statute in 1970, was essentially identical to the 1968 UAGA. The state adopted the 2006 UAGA revisions by amending its own statute in 2010.[47] In Kentucky, six categories of people may make an anatomical gift during the life of the donor: (1) anyone over the age of eighteen, (2) those sixteen or older if applying for a driver's license, (3) emancipated minors, (4) unemancipated minors whose parent has authorized the gift, (5) any person who has an agent with power of attorney for healthcare, and (6) anyone who is under guardianship.[48] State law makes the process for becoming an organ donor relatively convenient. One may opt into organ donation (1) when applying for a driver’s license (denotation made on driver’s license card), (2) communicate this desire in his or her will, (3) sign a donor card or other record indicating that the donor has made an anatomical gift to be included on a donor registry, the signing of which is witnessed by at least two adults, one of which is disinterested, (4) or during illness or injury of the donor communicate this desire to at least two adults, one of whom is required to be a disinterested witness.[49] Kentucky law does not differ in any substantial way from the model Act

C. Shortcomings of Express Consent

            Although concerted efforts have been made requiring health care providers to actively pursue organ donations, the organ shortage persists, even worsening with time.[50]  There are a number of reasons behind the personal reluctance of individuals to donate organs, including a general propensity to deny mortality, religious beliefs regarding bodily integrity, and general disgust at the idea of organ removal.[51] A 2002 study conducted in Australia illustrated that brain death remains a contentious issue.[52] Many participants indicated that they would never authorize donation of their next-of-kin’s organs if his or her heart were still beating, regardless of confirmation of brain death.[53] Research also indicates that mistrust of medical professionals is also a substantial barrier to organ donation. Brian Quick, a professor at the University of Illinois, explains, “There are a lot of people who subscribe to the belief that if a doctor knows you are a registered donor, they won’t do everything they can to save your life.”[54]Again, there is the persistent problem that expressing the desire to donate does not always translate into actually registering as an organ donor.[55] Although organ donor registration is a simple, straightforward process in most states, many people who claim to be willing to donate their own organs fail to take the affirmative step of registering to do so.[56]

Part II: Analysis of the Presumed Donative Consent Model

            Many nations around the globe have adopted the “presumed consent” model for organ procurement. As the title suggests, this system “presumes the decedent has consented to the harvest of his or her organs following death unless that decedent has recorded his or her objection to such harvest.[57] Unlike the express consent model in the United States, under which people must affirmatively opt in to organ donation, presumed consent requires those opposed to the donation of their organs upon death to affirmatively opt out of donation. There are various types of presumed consent systems that have found success in a number of countries, including Austria, Singapore, Chile, Wales, France, and Belgium.[58]Presumed consent proponents argue that not only does the system yield more organs for transplant, but it also places greater value on human life. They argue that by “making the basic presumption one which favors life, and thus putting the burden of objecting upon persons who would deny life to another, the policy of saving human life is given priority.”[59]

A. Presumed Consent in Operation

            The best example of a “pure” presumed consent model is Austria.[60] Austria is the only nation that does not allow next-of-kin the opportunity to object to the donation of the decedent’s organs.[61] “Austrian physicians appear to exercise their discretion granted under the law and do not discuss donation with the family, unless the family raises the issue, or unless the deceased is a minor . . . .”[62] When doctors are unsure whether or not the deceased has objected to organ donation, removal is permitted—they have no duty to search for documents indicating consent or objection.[63] Austrians wishing to object must do so in writing to ensure legal validity, but beyond this vague requirement, legislative specifics are scarce.[64] Austria’s presumed consent model has been an overwhelming success in regards to increasing the number of organs available for transplant. For example, in Austria, there are sixty cadaveric kidneys available per one million people, twice the amount available in the United States.[65]Wales has more relaxed presumed donative consent laws. The Welsh system, enacted in December 2015, allows family and friends to object if they believe that the deceased would not have consented to donation.[66] Wales has prioritized education efforts, launching campaigns to help people understand their organ donation options.[67]Early statistics show signs of progress: after only six months, of the sixty organs that were transplanted in Wales, thirty-two came from people whose consent had been presumed.[68] The family consent rate increased in Wales by 10%, and the number of living donors has increased by 20% since presumed consent laws took effect.[69]Singapore has taken a unique approach to presumed donative consent. The Human Organ Transplant Act couples a system of presumed consent with priority allocation measures meant to discourage people from opting out of organ donation.[70] Priority allocation means that if a person objects to donation, he goes to the bottom of the organ transplant list automatically if he were ever to need a life-saving organ.[71] Fear seems to be an effective motivator; since the Act’s passage in 1987, kidney donation has increased by 67%.[72]

B. Observations: Presumed Consent in Practice

            There is no doubt that although presumed consent has not eliminated organ shortages entirely in countries like Singapore, Austria, and Wales, it has increased the number of organ donors and organs available for transplant.[73] Presumed consent seems to be most effective in its purest form, meaning that if a decedent did not opt out during his or her lifetime, family members are not consulted before organs are harvested. However, leaving family members of the deceased out of the process entirely can cause them to feel disrespected, and in turn, can have a negative cumulative effect on public opinion toward presumed consent. It seems as though presumed consent systems are more effective when people are incentivized to not object to organ donation. For instance, although Singapore’s priority allocation law seems harsh, it has produced life-saving results.[74]

Part III: Barriers to Presumed Consent in the United States

            There are currently no states with presumed donative consent laws on the books.[75] There are, however, portions of state laws that resemble presumed consent. Such a provision exists in Kentucky’s version of the Uniform Anatomical Gift Act.[76] This law allows for the removal of “corneas or corneal tissue” so long as an autopsy has been ordered, corneas are suitable for transplant, and no objection from next-of-kin is known.[77] The statute does not require the coroner or medical examiner to inquire into whether the decedent was a registered organ donor, or whether his or her family would expressly consent to such removal.[78] If this law functions effectively, why couldn’t presumed donative consent work on a larger scale?The answer to this fundamental question lies in public opinion. Legislators in a number of states have proposed presumed donative consent bills, all of which failed quickly after their inception.[79] In 2010, a New York assemblyman authored a presumed consent bill after his daughter’s life was saved after two kidney transplants, reasoning:

We can trust the decency of the American people, but the government needs to come up with a program that lets people express that decency. That’s what’s missing—a connection between the fundamental goodness of the American people and a system that is not producing the organs that save lives.[80]

His bill was met with objection from the United Network for Organ Sharing (UNOS), the organization that facilitates the organ matching and placement process across the nation.[81] UNOS opposes presumed consent because of “inadequate safeguards for protecting the individual autonomy of prospective donors.”[82]Recently, a presumed consent bill was proposed by a state senator in Connecticut.[83] The chairman of Connecticut’s Republican Party fiercely criticized the proposal, calling it a “fringe, off-topic agenda item.”[84] The bill also met opposition from the Connecticut Nurses Association and the Connecticut Hospital Association, both groups saying that presumed consent raises “complex legal issues.”[85] The Connecticut bill met the same fate as other presumed consent proposals when the legislature’s public health committee declined to move the bill forward.[86]Presumed consent systems implicate a number of legal and ethical concerns such as individual autonomy, property rights, fear that the reluctant or procrastinating dissenter will not get the chance to express his or her wishes before death, and the loss of the societal benefits that accompany an opt-in system.

A. Presumed Consent as an Unconstitutional Taking

            The Takings Clause of the United States Constitution prevents the government from taking private property from an individual for public use without just compensation.[87] It has been argued that the taking of cadaveric organs without the express consent of the decedent amounts to an unconstitutional taking.[88] In order to be a constitutionally protected property interest worthy of due process protections, there must be a legitimate claim of entitlement to the property.[89] In Moore v. Regents of the University of California, a case regarding the sale of the plaintiff’s biomedical materials without his informed consent, the California Supreme Court held that a conversion cause of action could not lie because persons do not have a property interest in their own body parts.[90]Courts are split on what kind of property interest, if any, surviving family members have in the decedent’s corpse. The Sixth Circuit’s decision in Brotherton v. Cleveland is one of few to find that family members possess a constitutionally protected property interest in a decedent’s corpse.[91] Most states, like Kentucky, have followed the traditional common law approach to the issue, or have recognized a family member’s quasi-property interest in their next of kin’s body parts.[92] The Kentucky Supreme Court articulates the common law rule as follows: “The current of authority in this country is to the effect that there is not a property right to a dead body in a commercial sense, but there is a right to bury it which the courts of law will recognize and protect.”[93] The common law rule does not recognize a property right in the body, only a limited possessory interest for burial or lawful disposition.Dean Prosser seems skeptical of the recognition of a family member’s quasi-property right in a decedent’s corpse, even suggesting that it is a legal fiction, commenting:

In these cases the courts have talked of a somewhat dubious “property right” to the body, usually in the next of kin, which did not exist while the decedent was living, cannot be conveyed, can be used only for the one purpose of burial, and not only has no pecuniary value but is a source of liability for funeral expenses. It seems reasonably obvious that “property” is something evolved out of thin air to meet the occasion, and that in reality the personal feelings of the survivors are being protected, under a fiction likely to deceive no one but a lawyer.[94]

The constitutionality of a Florida statute authorizing medical examiners to remove corneal tissue from decedents without notifying family members (similar to Kentucky’s statute aforementioned) was challenged in State v. Powell.[95] Under the statute, corneal tissue could not be removed if the decedent’s next of kin objected, but medical examiners had no affirmative duty to seek their permission.[96] The Florida Supreme Court upheld the constitutionality of the statute, holding that family members do not have constitutionally protected liberty or property interest in the decedent’s remains, and thus, are not afforded due process protections before corneal tissue is removed.[97] Plaintiffs cited a number of Supreme Court cases that recognized the freedom of personal choice in family matters in support of their claim.[98] The Court distinguished such cases, reasoning:

The cases cited recognize only freedom of choice concerning personal matters involved in existing, ongoing relationship among living persons as fundamental or essential to the pursuit of happiness by free persons. We find that the right of the next of kin to a tort claim for interference with burial, established by this Court in Dunahoo, does not rise to the constitutional dimension of a fundamental right traditionally protected under either the United States or Florida Constitution.[99]

Georgia’s cornea removal statute was also challenged on constitutional grounds. In Georgia Lions Eye Bank, Inc. v. Lavant, plaintiffs argued that the statute violated due process by depriving a person of a property right in the corpse of his family member, and failing to provide notice and an opportunity to be heard.[100] The Court upheld the statute, declining to find a constitutionally protected right in the decedent’s body.[101] The Court did, however, recognize the existence of a property right that is limited in its scope, reasoning, “. . .the courts have evolved the concept of quasi property in recognition of the interests of surviving relatives in the possession and control of decedents’ bodies. We do not find this common law concept to be of constitutional dimension.”[102]The Sixth Circuit Court of Appeals took up the issue in Brotherton v. Cleveland, and reached a vastly different conclusion than state courts in Florida and Georgia.[103] In Brotherton, the plaintiff brought an action under Section 1983, alleging that her husband’s corneas were removed without due process of law, in violation of the Fourteenth Amendment.[104] Before the removal, the plaintiff had voiced her objection to making any sort of anatomical gift to hospital staff, and her objection was documented.[105] Her husband’s body was transported to the coroner’s office for an autopsy, and his corneas were subsequently removed.[106] The hospital did not communicate the plaintiff’s objection to making an anatomical gift.[107]In order to establish a violation under Section 1983, the plaintiff must prove that she was deprived of a right (here, property) secured by the Constitution or federal law, and that such deprivation occurred under the color of state law.[108] The plaintiff was easily able to meet two of the three elements: she was deprived of her husband’s corneas by the medical examiner, an employee of the state.[109]  In deciding whether the plaintiff had a constitutionally protected property interest in her deceased husband’s corneas, the Court examined how such an interest had previously been treated under Ohio law, emphasizing that “this determination does not rest on the label attached to a right granted by the state but rather on the substance of that right.”[110] The Court found that the plaintiff had an express right, granted by Ohio’s version of the Uniform Anatomical Gift Act, to control the disposal of her husband’s body.[111] Precedent granted her a possessory right to his body, as a well as a claim for disturbance of his body.[112]

Although extremely regulated, in sum, these rights form a substantial interest in the dead body, regardless of Ohio’s classification of that interest. We hold the aggregate of rights granted by the state of Ohio to [plaintiff] rises to the level of a “legitimate claim of entitlement” in [her husband’s] body, including his corneas, protected by the due process clause of the Fourteenth Amendment.[113]

The Court concluded that the plaintiff was not afforded the necessary pre-deprivation process, calling this failure on behalf of the government “an egregious abuse of governmental power.”[114] The Court based the existence of the plaintiff’s constitutionally protected property interest partially on the rights granted to her in the state’s Uniform Anatomical Gift Act to dispose of her husband’s body.[115] It is probable that if such language had not been included in Ohio’s Act, the Sixth Circuit would not have afforded her due process protections.

B. Presumed Consent Compromises Individual Autonomy

            Some critics of the presumed consent organ procurement model are uncomfortable with the notion that silence constitutes consent under the system. They argue that such a system discounts the importance of individual autonomy, thus, “unless we are prepared to advocate control of the body by the state following death, we should seek the approval of families of the deceased. . .”[116] The Florida Supreme Court addressed this argument in State v. Powell.[117] The court reasoned, “Neither federal nor state privacy provisions protect an individual from every governmental intrusion into one’s private life, especially when a statute addresses public health interests.”[118]The idea that individual autonomy may at times be compromised for the public good is not a new one. The United States Supreme Court took up this issue in 1905 in Jacobson v. Massachusetts, a case involving compulsory smallpox vaccinations.[119] The plaintiff challenged a local law requiring each citizen to be vaccinated or pay a criminal fine, claiming that it violated his inherent right to make his own health care choices and amounted to an assault on his person.[120] The Court patently rejected this argument, finding such minor invasions of personal liberties necessary in maintaining an orderly society.[121] Justice Harlan elaborated on this notion, writing:

The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subjected for the common good.[122]

The Court also recognized the right of states to enact “such reasonable regulations [. . .] as will protect the public health and the public safety.”[123]Effective organ procurement laws strike a balance between morality and individual autonomy. Just as the Court in Jacobson prioritized protecting the population from the spread of the smallpox virus, it is crucial that the government prioritize procuring life-saving organs.[124]  Critics of the presumed consent model argue that it disregards the will of the individual by allowing silence to constitute consent.[125] However, this overruling of the donor’s will also occurs when the decedent’s family is consulted under the current express consent system.[126] In Kentucky, when a decedent is not registered as an organ donor, certain relatives are authorized by statute to make anatomical gifts on the decedent’s behalf.[127] This too has the potential to disregard the will of the individual. Under any organ procurement system, some compromise of individual autonomy is inevitable because organs are removed upon death, when a person is no longer able to communicate his or her wishes.

C. Organ Shortages Persist Despite Presumed Consent Laws

            Opponents of presumed consent argue that the system is ineffective because it has not eliminated organ shortages in the countries in which it has been enacted.[128] While it is true that more organs are needed for transplant than are donated, the argument that the higher rates of organ donation under presumed consent are “of little consequence” because the system is not entirely curing the shortage is ludicrous and insensitive.[129] The argument devalues the lives saved by organ transplants and overstates the sacrifice made when one pledges to become an organ donor. Patients on the organ transplant list are fighting for their lives while they await a lifesaving transplant. Thousands of Americans die every year waiting. When it comes to saving human lives, isn’t any improvement consequential?

D. Presumed Consent Undermines the Societal Benefits an Altruistic System Provides

            Scholars argue that presumed consent undermines the inherent altruistic benefits voluntary donation provides, and that the system will “lead to a situation where the poor, the uneducated, and the legally disenfranchised might bar a disadvantageous burden, and only the more advantaged groups would exercise autonomy since only the more advantaged groups would be aware of their right to opt-out.”[130] This argument is flawed for a number of reasons. First, it assumes that public campaigns aimed at educating people about presumed consent laws will be ineffective, or maybe that they simply will not exist at all, leading to dangerous information asymmetry.Secondly, it places an undue amount of weight on the minor difference between opting in and opting out. Both are affirmative acts. Under either system, a person is still making a conscious decision not to deprive someone of an organ, which will undoubtedly provide the potential donor with the same benefit of knowing he has potentially saved a life, regardless of the means used to record his choice.[131] Perspective is crucial, and “preserving the privilege of the few to exercise their virtue [is not] a morally sufficient ground for standing in the way of a policy that could save numerous lives.”[132]

E. Reputational Harm and Implications for the Procrastinating Dissenter

            Skeptics of presumed consent contend that the system “insidiously exploits the citizen’s regrettable reluctance to dissent, even though dissent is her right. It would depend for its success on the unhappy fact that most humans are disinclined toward active protest of that which is customary and routine.”[133] In addition, “the procrastinating or reluctant dissenter” may never have the opportunity to “opt-out” of the system.[134] Both of these valid concerns can be mitigated with the inclusion of simple provisions in presumed consent legislation aimed at protecting the confidentiality of dissenters’ identity.It is reasonable that some who find organ donation objectionable may nonetheless choose not to opt out because they are afraid of the reputational harm that may accompany the act. As long as confidentiality of organ donor records is rigidly maintained, one’s organ donor status will never become common knowledge. The opt-out option could be made available online so dissenters would not even have to interact with a government employee in order to register their objection. The problem of procrastinating dissenters would not be a substantial one as long as presumed consent laws were crafted to allow one numerous opportunities during his or her lifetime to opt-out. The option should be available and easy to access at any time.

Part IV: A Proposal for Presumed Consent Legislation in Kentucky

An ideal system of organ procurement is one created to effectively balance two goals: (1) increasing the supply of organs available for transplant, while (2) maximizing individual autonomy.[135]In order to pass ethical muster, it is imperative that implementation of presumed consent laws be accompanied with a vigorous public education campaign.[136] Because silence constitutes consent under this model, it is the role of the government and health care providers to ensure that silence does not, in practice, actually constitute a lack of knowledge of the right to object.[137] It is crucial that people are able to access the information they need in order to make an informed choice about whether or not to opt out of the system.

A. Basic Framework of Kentucky Presumed Consent Legislation

            In order for a system of presumed consent to truly respect individual autonomy, the opportunity to opt-out of organ donation must be constantly available and accessible. For minors, parents’ desire to have their child opted out of the organ donor registry should be recorded for the first time at birth. Unless the minor’s parent or legal guardian decides to change his or her donor status, it should remain in place until the child reaches age sixteen if applying for a driver’s license, or otherwise until the child reaches the age of majority (age eighteen in Kentucky). At either of these points, the parent’s desires are no longer taken into account, and the child should be allowed to make his or her own choice about whether or not to opt-out. The age range of sixteen to eighteen represents some of a young adult’s first interactions with government administration—obtaining a driver’s license and registering to vote.It follows that under the proposal, adults should also be able to revisit or change their donor status at any time. Any routine interaction with the government presents an opportunity to opt-out.  It is imperative that just as Kentucky citizens can now register to vote, change their political party affiliation, and change their permanent voting address online with relative ease, opting out of organ donation or changing one’s donor status should also be possible online.[138]In order to mitigate the reputational harm of opting out, as well as protect the privacy interests of Kentucky citizens, organ donor status should be afforded federal and state privacy protections. Such information should be treated no differently under Kentucky law than any other confidential medical record. Maintaining confidentiality of the donor database must be of utmost priority; if individuals are confident that their choice to opt-out will remain confidential, they are more likely to take the affirmative step to do so, increasing the likelihood that the authentic will of the individual is documented and respected. [139]Although “pure” presumed consent systems in which families are not consulted in any manner are most successful in terms of yielding the highest amount of organs available for transplant, they also arguably disrespect and disregard the wishes of surviving family members. The success of presumed consent systems, as we have seen, relies heavily on public opinion.[140] Public opinion would be presumably low if family members felt as though their concerns and objections were ignored. To avoid this problem, under this proposed system, the decedent’s family should be able to object to organ removal. However, the doctor will not affirmatively consult with them regarding the decedent’s donor status, so the burden is on the family to raise any concerns about the decedent’s wishes. Family members need not have specific objections (i.e. a religious exemption) in order to object; health care providers will respect any objection. Such a provision seems the best way to balance the goal of obtaining more organs with the autonomy of the individual and wishes of the family during a traumatic loss of a loved one.

B. Educational Campaign

            The danger of information asymmetry exists in any interaction between the government and the governed. In order to uphold values of individual autonomy, it is essential for Kentuckians to be aware not only of the implementation of presumed consent laws and their implications, but also the nuts and bolts of the opt-out process. Anyone wishing to object must know how to access the means to do so.This means that well before presumed consent laws are enacted, a widespread public information campaign must be launched. The purpose of the campaign should be twofold: it should be aimed at (1) dispelling myths about organ donation (for example, the common misconception that one cannot have an open-casket viewing if organs are donated), and (2) explaining the process of opting out.[141] It is also important that Kentuckians know where to find answers to their questions about the new legislative scheme. It is likely that almost all money spent on implementing this new presumed consent law will go toward funding the educational campaign.Social media should be the major target of the public awareness campaign. According to 2017 statistics, 81% of Americans have a social media profile.[142] Although states have spent hundreds of millions of dollars on media campaigns over the years in hopes of increasing the number of registered organ donors, organ donation rates in America have remained relatively static while the need for organs has increased drastically.[143] The United States Department of Transplantation has created a number of grant programs aimed at improving donation rates.[144] These efforts proved fruitless as well.[145]In an attempt to tackle this problem in an innovative way, Facebook partnered with the transplant team at Johns Hopkins, the Living Legacy Foundation of Baltimore, and Donate Life America and altered Facebook profile options to allow a user to designate their organ donor status.[146] If a Facebook member chose to select “organ donor” to their profile, they were immediately directed to a link to their state’s organ donor registry, providing easy accessibility to officially register.[147] Facebook users who remained undecided about organ donation were guided to Internet links providing information and dispelling organ donation myths.[148]The organ donor initiative went live on Facebook on May 1, 2012 and the results are astounding.[149] On the first day of the initiative, online organ registrations increased by over 21-fold—going from a baseline average of 616 registrations to 13,054 online registrations.[150] Online registration rates remained elevated for the following twelve days of the initiative, while DMV donor registration remained static.[151] The impact of the implementation of presumed consent laws in conjunction with an effective social media education campaign has the potential to increase the number of organ donors in Kentucky dramatically.Along with the social media campaign, public service announcements should appear on television, ramping up in the months leading up to the law’s enactment. Every high school sophomore (usually between the ages of fifteen and sixteen) attending a public Kentucky school should be required to attend an informational seminar about organ donation facilitated by state officials. By the time these students apply for a driver’s license, they will understand presumed consent laws and are well equipped to make an informed decision regarding their donor status. Students who are unable to attend the information session (perhaps because they attend a private school or are homeschooled) should be shown a video containing the same information before they are allowed to take the test to obtain their learner’s permit. Also, it is imperative that the state maintain a toll free number and a website to field questions and provide information about the new presumed consent system.

Conclusion

            As of August, 2017, in the United States more than 116,000 people are languishing on the organ transplant list, awaiting their opportunity to receive a lifesaving organ.[152] The current express consent organ donation system falls far short of meeting the ever-increasing demand for organs, even when coupled with aggressive, expensive public awareness campaigns. The current approach to organ procurement in the United States has left a huge disparity between supply and demand for decades. On average, twenty people die each day waiting for an organ.[153] That brutal statistic alone illustrates the urgency of the organ shortage.Although public opinion overwhelmingly supports organ donation, this positive sentiment does not translate into an adequate number of people on the organ donor registry[154], making it imperative that the government intervene in an effort to alleviate this deadly shortage. The method of increasing organ donors that would have the most impact in the shortest amount of time is the adoption of a system of presumed donative consent. As Emily Morris explains in her 2002 Kentucky Law Journal article on the topic, “Bodies now have a utility after death that they never had before: they possess the ability to save lives. Public health laws need to be rewritten to reflect that change.”[155] Although presumed consent laws may not alleviate the organ shortage entirely, if implemented after an effective educational campaign, it can help close the gap between supply and demand.[156]Legal and ethical concerns accompany any organ procurement system, but they are especially complex when it comes to presumed consent, which makes public educational campaigns even more crucial to the scheme’s success. While concerns over bodily integrity and individual autonomy are certainly valid, at some point our society must collectively begin prioritizing the health and welfare of the living over what happens to our bodies after our death. The government must take an active role in showing the American people that presumed donative consent is not a “fringe” topic, but it is instead a legislative scheme that, if implemented successfully, could save tens of thousands of lives every year.[157] 

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

[2] Dan Lieberman & Ely Brown, The Waiting Game: 9 Organ Transplant Patients Fight to Survive, ABC Nightline (May 1, 2012), http://abcnews.go.com/Health/waiting-game-organ-transplant-patients-fight-survive/story?id=16245341#1; John S. Child et al., Echocardiographic Manifestations of Infiltrative Cardiomyopathy A Report of Seven Cases Due to Amyloid, American College of Chest Physicians, Chest, 70: 6, at 730, Dec. 1976, http://journal.chestnet.org/article/S0012-3692(16)38149-1/pdf.

[3] Lieberman & Brown, supra note 2; Double-transplant Survivor Starts New Life, New England Cable News (Jan. 17, 2014), http://www.necn.com/news/new-england/_NECN__Double-transplant_Survivor_Starts_New_Life_NECN-247631031.html.

[4] Lieberman & Brown, supra note 2.

[5] New England Cable News, supra note 3.

[6] Dep’t of Health and Hum. Serv., U.S. Government Information on Organ Donation and Transplantation, https://www.organdonor.gov/statistics-stories/statistics.html (last visited Sept. 17, 2017).

[7] Id.

[8] Organ Transplants: A Brief History, History.com (Feb. 12, 2012), http://www.history.com/news/organ-transplants-a-brief-history.

[9] See id.

[10] Id.

[11] Id.

[12] Dep’t of Health and Hum. Serv., Timeline of Historical Events and Significant Milestones, https://www.organdonor.gov/about/facts-terms/history.html (last visited September 16, 2017).

[13] Legis. Budget & Fin. Committee, A Performance Evaluation of Pennsylvania’s Organ and Tissue Donor Awareness Program, June 2007, http://lbfc.legis.state.pa.us/Resources/Documents/Reports/145.pdf.

[14] Dep’t of Health and Hum. Serv., What Can be Donated, https://www.organdonor.gov/about/what.html#expandcollapse, (last visited September 16, 2017).

[15] Unif. Determination of Death Act (Nat’l Conference on Comm’rs on Unif. State Laws 1981).

[16] Dep’t of Health and Hum. Serv., The Deceased Donation Process https://www.organdonor.gov/about/process/deceased-donation.html, (last visited September 16, 2017).

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] See Dep’t of Health and Hum. Serv supra note 16.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] See Dep’t of Health and Hum. Serv supra note 6.

[27] See Dep’t of Health and Hum. Serv., Sign Up to be an Organ Donor, https://organdonor.gov/register.html (Last visited October 14, 2017).

[28] Tiffanie Wen, Why Don’t More People Want to Donate Their Organs?, The Atlantic (Nov. 10, 2014), https://www.theatlantic.com/health/archive/2014/11/why-dont-people-want-to-donate-their-organs/382297/.

[29] See generally A.M. Cameron et al., Social Media and Organ Donor Registration: The Facebook Effect, 13 AM. J. OF TRANSPLANTATION 2061 (2013).

[30] Id.

[31] David E. Jefferies, The Body as a Commodity: The Use of Markets to Cure the Organ Deficit, 5 Ind. J. Global Leg. Stud. 621, 627 (1998).

[32] Id. at 628.

[33] Id.

[34] Id. (quoting Melissa N. Kurnit, Organ Donation in the United States: Can We Learn From Successes Abroad?, 17 B.C. Int’L & Comp. L. Rev. 405, 427 (1994).

[35] Emily D. Morris, Note, The Organ Trail: Express Versus Presumed Consent as Paths to Blaze in Solving a Critical Shortage, 90 Ky. L. J. 1125, 1130 (2001).

[36] See generally National Conference of Commissioners on Uniform State Laws, Revised Uniform Anatomical Gift Act, 2006, available at http://www.uniformlaws.org/shared/docs/anatomical_gift/uaga_final_aug09.pdf (Last visited Oct. 17, 2017).

[37] Uniform Anatomical Gift Act (2006), §16.

[38] Jeffries, supra note 31, at 630.

[39] Jefferies, supra note 31, at 629–30.

[40] Morris, supra note 35, at 1131 (quoting Alexandra K. Glazier, The Brain Dead Patient Was Kept Alive” and Other Disturbing Misconceptions; A Call for Amendments to the Uniform Anatomical Gift Act, 9 Kan. J.L. & Pub. Pol’y 640, 645 (2000).

[41] Jefferies, supra note 31, at 630.

[42] Id.

[43] Id.at 630–31.

[44] Melissa N. Kurnit, Organ Donation in the United States: Can we Learn from Successes Abroad?, 17 B.C. Int’l & Comp. Law. Rev. 405, 413 (1994).

[45] Id.

[46] See Id. at 413–14, 432–33.

[47] Ky. Rev. Stat. Ann. § 311.1955 (West 2010).

[48] Ky. Rev. Stat. Ann. § 311.1915 (West 2010).

[49] Ky. Rev. Stat. Ann. § 311.1817 (West 2010).

[50] Casey Leins, Should the Government Decide if You’re an Organ Donor?, U.S. News & World Report, Feb. 12, 2016, https://www.usnews.com/news/articles/2016-02-12/presumed-consent-and-americas-organ-donor-shortage.

[51] Jefferies, supra note 31, at 628–29.

[52] Wen, supra note 28.

[53] Id.

[54] Id.

[55] See Jefferies, supra note 31, at 632.

[56] Id.

[57] Jefferies, supra note 31, at 634.

[58] Id. at n. 72.

[59] Everton Bailey, Should the State have Rights to your Organs? Dissecting Brazil’s Mandatory Organ Donation Law, 30 U. Miami Inter-Am. L. Rev. 707, 719–20 (1999).

[60] Kurnit, supra note 44, at 423.

[61] Id.

[62] Id.

[63] Id.

[64] Id.

[65] Christian Williams, Note, Combatting the Problems of Human Rights Abuses and Inadequate Organ Supply Through Presumed Donative Consent, 26 Case W. Res. J. Int’l. 315, 340 (1994).

[66] Casey Leins, Should the Government Decide if You’re an Organ Donor?, U.S. News (Feb. 12, 2016), http://www.usnews.com/news/articles/2016-02-12/presumed-consent-and-americas-organ-donor-shortage.

[67] Steven Morris, Welsh “Deemed Consent” Organ Donation System Shows Promising Results, the guardian (Sept. 4, 2016), https://www.theguardian.com/society/2016/sep/04/wales-deemed-consent-organ-donation-system-promising-results.

[68] Id.

[69] Id.

[70] Alejandra Zúñiga-Fajuri, Increasing Organ Donation by Presumed Consent and Allocation Priority: Chile, Bull. World Health Org. (World Health Org.), March 2015, at 199.

[71] Id.

[72] Williams, supra note 65, at 339–40.

[73] See discussion supra Part II.A.

[74] Id.

[75] Leins, supra note 66.

[76] See Ky. Rev. Stat. Ann. § 311.1961 (West, Westlaw through 2017 reg. sess.).

[77] Id.

[78] See id.

[79] Leins, supra note 66.

[80] Madison Park, California, New York Mull Changes to Organ Donor Laws, CNN (May 10, 2010), http://www.cnn.com/2010/HEALTH/05/10/organ.donation.jobs.laws/#.

[81] See id.

[82] Id.

[83] See Daniela Altimari, Republicans Blast Mandatory Organ Donation Proposal, Hartford Courant (March 16, 2017), http://www.courant.com/politics/hc-mandatory-organ-donation-20170316-story.html.

[84] Id.

[85] Id.

[86] Id.

[87] U.S. Const. Amend. 5.

[88] Kurnit, supra note 44, at 438.

[89] Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).

[90] Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 487-92 (Cal. 1990).

[91] See Brotherton v. Cleveland, 923 F.2d 477, 482 (6th Cir. 1991).

[92] See id. at 480.

[93] Neighbors v. Neighbors, 65 S.W. 607, 608 (Ky. 1901).

[94] State v. Powell, 497 So. 2d 1188, 1192 (Fla. 1986) (quoting W. Prosser, The Law of Torts, 43–44 (2d ed. 1955)).

[95] See id.

[96] Id. at 1189.

[97] Id. at 1193.

[98] Id.

[99] Id.

[100] See Georgia Lions Eye Bank, Inc. v. Lavant, 335 S.E.2d 127, 127–28 (Ga. 1985).

[101] Id. at 128.

[102] Id.

[103] See Brotherton v. Cleveland, 923 F.2d 477 (6th Cir. 1991).

[104] Id. at 478–79.

[105] Id. at 478.

[106] Id.

[107] Id.

[108] 42 U.S.C. § 1983 (1996).

[109] Brotherton v. Cleveland, 923 F.2d 477, 479 (6th Cir. 1991).

[110] Id. at 481-82 (citations omitted).

[111] Id. at 482.

[112] Id.

[113] Id.

[114] Id.

[115] Id.

[116] Jefferies, supra note 32, at 642.

[117] See State v. Powell, 497 So. 2d 1188 (Fla. 1986).

[118] Id. at 1193.

[119] See Jacobson v. Massachusetts, 197 U.S. 11 (1905).

[120] Id. at 26.

[121] Id. at 26, 27–29.

[122] Id. at 26.

[123] Id. at 25.

[124] See id.  

[125] Jefferies, supra note 31, at 649.

[126] Kurnit, supra note 44, at 439-40.

[127] Ky. Rev. Stat. Ann. § 311.1925 (West 2017).

[128] See Bailey, supra note 59, at 719.

[129] Jefferies, supra note 31, at 650.

[130] Bailey, supra note 59, at 721.

[131] Kurnit, supra note 44, at 436.

[132] Arthur J. Matas et al., A Proposal for Cadaver Organ Procurement: Routine Removal with Right of Informed Refusal, 10 J. Of Health Pol., Pol’y & L. 231, 242 (1985).

[133] Bailey, supra note 59, at 720.

[134] Id. at 721.

[135] Jefferies, supra note 31, at 640.

[136] U.S. Dept. of Health and Human Serv., An Evaluation of the Ethics of Presumed Consent, Organ Procurement and Transplantation Network, June 1993, https://optn.transplant.hrsa.gov/resources/ethics/an-evaluation-of-the-ethics-of-presumed-consent/.

[137] See id.

[138] See Jack Brammer, Online Voter Registration Comes to Kentucky, Herald Leader (Mar. 14, 2016), http://www.kentucky.com/news/politics-government/article65982842.html.

[139] Sarah E. Statz, Note, Finding the Winning Combination: How Blending Organ Procurement Systems Used Internationally Can Reduce the Organ Shortage, 39 Vand. J. Transnat’l L. 1677, 1706 (Nov. 2006).

[140] See Leins, supra note 66.

[141] See e.g., Organ Donation: Don’t Let These Myths Confuse You, Mayo Clinic (Feb. 16, 2017), http://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/organ-donation/art-20047529.

[142]Percentage of U.S. Population with a Social Media Profile from 2008 to 2017, Statista, https://www.statista.com/statistics/273476/percentage-of-us-population-with-a-social-network-profile/ (last visited September 29, 2017).

[143] Cameron et al., supra note 29, at 2059.

[144] Id. at 2059–60.

[145] Id. at 2060.

[146] Id.

[147] Id.

[148] Id.

[149] See id. at 2060–61.

[150] Id. at 2059.

[151] Id. at 2061.

[152] See Dep’t of Health and Hum. Serv., supra note 5.

[153] Id.

[154] See Cameron et al., supra note 29, at 2059.

[155] Morris, supra note 35, at 1148.

[156] Id.

[157] See Altimari, supra note 83.

Veterans Treatment Courts in Kentucky: Their Success, Their Shortcomings, and What Kentucky Can Do to Further Rehabilitate Veterans

Veterans Treatment Courts in Kentucky: Their Success, Their Shortcomings, and What Kentucky Can Do to Further Rehabilitate Veterans

Article | 105 KY. L. J. ONLINE | November 22, 2017

Adam Meyer[1]

Introduction

            “The victims of [post-traumatic stress disorder] often feel morally tainted by their experiences, unable to recover confidence in their own goodness, trapped in a sort of spiritual solitary confinement, looking back at the rest of the world from beyond the barrier of what happened.”[2] Between 11‑20% of veterans who served in Operation Iraqi Freedom (OIF) or Operation Enduring Freedom (OEF) suffer from PTSD.[3]  Research shows a direct correlation between these mental disorders, substance abuse issues, and criminal behavior.[4] Instead of looking to the retributive forms of punishment, many states, including Kentucky, have created Veteran Treatment Courts (“VTC”) in order to rehabilitate these veterans.[5] Further, the federal government and several states have enacted sentencing guidelines and statutes that allow for sentence mitigation for veterans suffering from mental disorders caused by military service.[6] The creation of the VTC, sentencing guidelines, and statutes demonstrate the public’s recognition and concern for our nation’s young men and women who have served their country.The purpose of the VTC is to treat veterans suffering from substance abuse and mental disorders while ensuring public safety.[7] Taking a rehabilitative approach, VTC’s utilize rigorous treatment and personal accountability to fully treat the veteran.[8] To accomplish this goal, the VTC, in a manner similar to drug courts, uses a coordinated response with mental health and substance abuse recovery providers, the Department of Veterans affairs, Veterans Benefits Administration, and numerous other resources to promote the recovery and sobriety of the veteran.[9] The VTC has a great number of benefits, including saving millions in penitentiary costs, overall reduction in crime, and healthier communities.[10]In 2012, Kentucky created its first VTC in Jefferson County.[11] Since its creation, the program has moved into four more Kentucky counties.[12] The purpose of this note is to give an overview of the VTC, explain and reveal the importance of this program, recommend that the Kentucky Legislature statutorily expand the number of VTC’s, and revise sentencing guidelines to make military service a possible mitigating factor.Part I of this note discusses the link between military service and criminal behavior. Part II of this note explains the purpose of VTC, its origins, its formation in Kentucky, and veteran qualifications needed for participation. Part III of this note explores the criticisms of the VTC and discusses arguments against the criticism. Part IV of this note describes how state legislatures outside of Kentucky have passed legislation for the formation of VTC’s and explores the benefits of having a statue. Part V of this note discusses alternative judicial protections for veterans such as sentencing mitigation for combat veterans. Finally, part VI of this note advocates for expanded utilization and funding of the Kentucky VTC and for the state legislature to pass statutes that will change criminal sentencing guidelines to further protect veterans suffering from mental service-related injuries.

I. The Connections Between Military Service and Criminal Behavior

            To truly understand the need for special veteran treatment, the root of the problem must be explored. Part A will describe the causes of mental disorders in our military troops. Part B will explain the link between military related mental disorders and criminal behavior.

A. PTSD and its Connection to Combat Stress, Traumatic Brain Injuries, Military Sexual Trauma

            The development of PTSD occurs after a terrifying or traumatic event involving either a threat of physical harm or actual physical harm.[13] PTSD is “an anxiety disorder that occurs after a traumatic event in which a threat of serious injury or death was experienced or witnessed and the individual's response involved intense fear, helplessness, or horror.”[14]  While stressful mental reactions to a traumatic event normally subside relatively quickly, these symptoms may exist for longer in individuals suffering from PTSD.[15]The symptoms of PTSD are usually divided in to four different types.[16]  First, a person with PTSD may suffer from nightmares or flashbacks of the traumatic event.[17]  Second, a person may try to avoid talking about, thinking about, or being involved in situations that may trigger memories of the traumatic event.[18]  Third, a person with PTSD may begin to feel differently about themselves and others due to the trauma and may avoid relationships.[19] Finally, a person may be overly fearful of dangerous situations, causing the person to become abruptly angry or irritable.[20] These mental health issues will often be left untreated because many veterans fear that they will be stigmatized by society if they seek treatment.[21]There are many stressors that contribute to PTSD for deployed combat troops and non-deployed active duty service members.[22] Combat stressors include seeing dead bodies, being shot at, being attacked or ambushed, knowing someone who was killed or seriously injured, and combat traumatic brain injuries (“TBI”).[23] Today’s combat veterans returning from service in either Operation Enduring Freedom (“OEF”) or Operation Iraqi Freedom (“OIF”) face an unprecedented amount of strain.[24] Unlike past American conflicts, our military today is entirely based on a volunteer core and is not a drafted service.[25] Military troops have faced several consecutive combat tours of duty, some deploying as many as nine times.[26] Recent Army studies show that there is an increase in PTSD in troops who have had several combat deployments.[27] TBI’s have increased because the use of improvised explosive devices (“IED”) in Iraq and Afghanistan increased. TBI is now considered to be the “signature wound” of these wars.[28]  Most research suggests that many people who suffer a TBI also develop PTSD.[29]The stressful events prevalent in the military are not limited to combat situations. Military Sexual Trauma (MST[30]) is a largely recognized service related stressor.[31] More than half of veterans who have endured MST suffer from PTSD.[32]While sexual assault and trauma disproportionately affects women, it is undeniable that men are also affected. .[33] Although underreported,[34] statistics show, of the reported cases, one in four females has been subject to unwanted sexual contact while in the military.[35]  MST symptoms include feelings of depression and anger, sudden emotional outburst, feelings of numbness, trouble sleeping, trouble focusing, addiction and dependence on alcohol or drugs, difficulties with relationships, and physical health problems.[36]Even if a service member does not suffer from PTSD or MTS, adjustment to civilian life can still be a monumental task. Epidemiological studies have linked veterans with violent tendencies and post-deployment criminal behavior to repeat deployments in combat zones.[37] While in these combat zones veterans are subject to “[h]eightened levels of awareness” and stress.[38]  When returning home these heighted levels “increase irritability, outburst[s] of anger, and [cause] poor sleep patterns, making normal social interaction with family and friends very difficult.  These adjustment problems can be compounded when returning veterans are also suffering from PTSD or other war-related psychological injuries.”[39]In sum, there are a wide range of military experiences–both combat and non-combat related–that can leave a veteran’s mind damaged from their service. “Left untreated, mental health disorders common among veterans can directly lead to involvement in the criminal justice system.”[40]

B. The Rising Number of Veterans Suffering from PTSD and the Link to Criminal Behavior

          Historically, an increased number of veterans surface in the criminal justice system following each major American conflict.[41] In past generations these combat veterans were essentially cast aside by our society, and instead of receiving treatment, they were incarcerated for their criminal behavior.[42] Many of these veterans are still “incarcerated, homeless, or chemically addicted.”[43] Thanks to modern psychology, there is a known link between military mental disorders, substance abuse,[44] criminal behavior, and homelessness.[45]One in five veterans exhibit symptoms of mental health disorder and one in six veterans who served in OEF and OIF suffer from issues related to substance abuse.[46] Veterans suffering from symptoms of PTSD or related mental illnesses often look to alcohol or other drugs to self-medicate[47]and help with their inability to sleep, feelings of numbness, anger, or depression[48]. For one reason or another, many of these self-medicating veterans will start to abuse drugs.[49] The most heavily cited reason for self-medicating is to avoid reliving a traumatic event.[50] Of the substances abused by veterans, a disproportionate number struggle with prescription addiction.[51] Many veterans have opioid prescriptions and over half chronically abuse the prescription.[52] This rate of abuse is alarming when compared to the civilian rate of prescription abuse.[53]Substance addiction problems often lead to several different types of criminal behavior which include: use-related crimes that happen under the influence of drugs, economic-related crime like prostitution and theft that occur to fund a drug habit, and system-related crimes that result from “production, manufacture, transportation, and sale of drugs.”[54]  This criminal activity can range from petty crimes to more serious violent behavior.[55]  A 2014 study found that 40% of veterans suffering from PTSD (which at the time was 300,000 veterans of OIF and OEF) had committed a violent crime after their military service.[56] Research shows that various situations can trigger aggressive tendencies in veterans with PTSD.[57] Anger is a normal response after trauma; this is related to natural survival instincts.[58] People with PTSD may react to stressful situations “as if [their] life or self were threatened.”[59] These triggers include remembering the distressing event, reliving the event (flashbacks), and having nightmares of the event.[60]  If an aggressive outburst is triggered, veterans find themselves at odds with the criminal justice system and often charged with a serious crime.[61]Veterans’ untreated psychological damage is directly linked to aggressive and addictive tendencies causing many veterans to end up in the criminal justice system. This warrants the development of special needs-based treatment courts for veterans suffering from PTSD and similar psychological injuries.[62]

II. Formation and Success of VTC’s Around the Country and in Kentucky

A. The Formation of the Country’s First VTC, its Proliferation, and Responses

          In 2008, Judge Robert Russell founded the first VTC in Buffalo, New York, [63] after noticing an increase in veterans appearing in the Buffalo drug and mental health courts.[64] Because of its great success, there are now over 220 VTC’s around the country.[65] Veterans of all service eras can be accepted into the program.[66]The VTC is a unique tool that effectively breaks the cycle of veteran criminal activities by directing them to community or Veteran Affairs treatment, which addresses the underlying mental instability and trauma, instead of merely sending the veteran to jail.[67] VTC’s are set up to address both substance and mental disorders, acting as a mix of a drug treatment court and mental treatment court.[68] The drug and mental treatment courts have had a “remarkable track record” reducing recidivism in a cost effective way that has spanned over twenty years. [69]The organization Justice for Vets has recognized ten key components of VTC’s, which have been implemented by the Kentucky VTC.[70] First, as noted above, the VTC integrates drug treatment and mental health services.[71] Second, the prosecutor and defense work together as a team in a non-adversarial fashion, to focus on the veteran’s recovery.[72] Third, the VTC identifies participants early on for prompt placement in the program.[73] Fourth, the program provides services other than drug and mental health services, including help with medical problems, homelessness, education, unemployment, and family trouble.[74] Fifth, frequent drug testing monitors the veteran’s sobriety.[75] Sixth, compliance with the program determines the veteran’s progress and is measured by the veteran’s overall cooperation or noncompliance.[76] Seventh, the veteran participating in the program has an ongoing interaction with the judge overseeing the VTC.[77] Eighth, the veteran’s success is gauged by a monitoring system that sets goals and objectives for the veteran to complete.[78] Ninth, volunteers and treatment staff participate in interdisciplinary educational training to promote effective planning, implementation, and operations.[79] And tenth, VTC’s, the Veteran Administration, private community organizations, and public agencies develop a partnership committed to the effectiveness of the program.[80]The VTC provides continuing access to alcohol, drug, and mental health treatment.[81] A crucial aspect of the treatment is the access to veteran peer mentors. The peer mentors provide structure and accountability, helping the veteran’s chances of drug use cessation and overall recovery.[82] This benefits many veterans, who end up in the court system afraid to seek treatment because they do not want to be stigmatizing diagnosis, such as PTSD.[83] The feared repercussions include stereotypes that all people with PTSD are dangerous or unstable, discrimination at work, and “being denied chances to succeed because of a PTSD diagnosis.”[84] Because new VTC’s are still emerging, concrete results data are still being formulated. For example, the VTC in Anchorage, Alaska, one of the first in the country, found lower rates of recidivism among graduates, compared to both the general population and veterans who did not participate in the program.[85] A survey of eleven treatment courts found that recidivism of VTC graduates was less than 2%.[86]  Approximately 67.8% of state prisoners are arrested within three years of release, and 76.6% are arrested within five years of release.[87] Due to these positive reports, the Department of Justice and President Obama granted funding for the creation of new VTC’s and for specialized training on how to develop a VTC.[88]

B. The Creation and Scope of the Kentucky VTC

          About 340,000 veterans live in Kentucky with as many as 10% struggling with issues caused by their military service.[89] The Kentucky Supreme Court formed Kentucky’s first VTC in Jefferson County in 2012[90] through the work of the Veteran’s Task Force, which was headed by Justice Will T. Scott and Chief Justice John D. Minton, Jr. [91] The purpose of the Veterans Task Force was to improve the ability of Kentucky courts to identify veterans in need and connect them with the appropriate treatment services.[92] The task force worked with all branches of state government and the Department of Veterans Affairs to get the VTC off the ground.[93] The VTC operates within the Department of Specialty Courts at the Administrative Office of the Courts, but is based on the Kentucky Drug Court program that began in 1996 and serves 113 counties.[94] The original funding of the 2012 Jefferson County VTC came from a $350,000 grant from the Bureau of Justice Assistance of the U.S. Department of Justice.[95] The funding is used to provide support services to the veterans and enable case managers who work closely with all of the agencies that assist the veteran.[96]  The goal of the cooperative funding is to ensure the veteran is given the best treatment.[97]The Kentucky VTC is overseen by the Administrative Office of the Courts and is implemented by “teams comprised of judges, Drug Court staff, veterans’ agencies, mental health and substance abuse treatment providers, law enforcement, the legal community, and community members.”[98] Program length is individualized based on the level of services needed by the veteran, usually lasting from eighteen months to two years.[99] Similar to the other VTC’s around the country, volunteer mentors meet with the veterans to encourage progress.[100] Upon successful completion of the program, the veteran’s criminal charges may be dismissed or a conditional discharge may be granted through probation.[101]In the years since the creation of the Jefferson County VTC, four other VTC’s have opened in Fayette, Hardin, Christian, and Kenton Counties, which is in northern Kentucky.[102] Most VTC teams have completed training through the National Drug Court Institute’s Veterans Treatment Court Planning Initiative.[103] While there is little concrete data about success rates, overall public reception of the program has been positive and at least one Kentucky county is hoping to integrate a VTC into its pre-existing drug treatment court programs.[104] In fact, the Kentucky House of Representatives acknowledged the efforts of the Kentucky Administrative Office of the Courts through a House Resolution that commended the establishment of the veterans’ court.[105]

C. The Kentucky Qualifications

          To qualify for the VTC, the Kentucky Supreme court has provided that the veteran must:

• Be an active-duty service member, a veteran, or in the reserves or National Guard.

• Each court will determine what it deems an acceptable military discharge.

• Have a pending eligible misdemeanor or felony offense or be on probation or shock probated for an eligible misdemeanor or felony offense. The exclusions are felony convictions for crimes that included violence and felony sexual offenses. Crime victims may give input concerning the veteran’s admission to VTC. The VTC team makes the final determination of eligibility and acceptance.

• Be a legal resident or citizen of the United States and a resident of the county in which the VTC is located or a contiguous county.

• Be assessed as having a substance abuse disorder and/or a psychiatric disorder such as post-traumatic stress disorder, traumatic brain injury, depression, anxiety, or other psychological or psychiatric illness.

• Express a willingness to participate and demonstrate a thorough understanding of the strict requirements of the program and the sanctions for violating those requirements.[106]

This program is set up on a referral basis. Referrals can be made by the prosecutor, judge, defense attorney, probation officer, or any other member of the VTC team.[107] A Circuit Court, Family Court, or District Court judge must complete a referral order before the VTC may assess the veteran.[108] The VTC completes an assessment on each veteran and determines if there are any risks and needs by looking at the veteran’s individual status and criminal history.[109]The qualification standard is mostly inclusive but is lacking in certain areas. The program does not differentiate between combat and non-combat veterans, only requiring there be “acceptable military discharge.” Moreover, it provides treatment services for a plethora of substance abuse issues and psychiatric issues beyond PTSD.  If Kentucky VTC’s view these requirements broadly, Kentucky would be one of the first states to accept veterans who have suffered MST into a VTC program.[110]  Although the program is highly inclusive, there are two exclusions that could cause substantial hardships to suffering veterans and should be reconsidered by Kentucky. First, the program excludes violent criminals. Second, it requires that veterans must reside in the county or contiguous county where the VTC is located.  Both issues will be explained and discussed in further detail below.Overall, Kentucky has laid a solid foundation upon which VTC’s can be created across the state.  However, certain amendments to the Kentucky VTC and criminal justice system should be made to rebuff potential criticisms of the VTC and to enable all veterans an opportunity for rehabilitation.

III. Criticism of the VTC

         While most reactions to the VTC have been positive, there are a few reoccurring concerns. Critics claim that VTC’s create a special class of criminal defendants, the program is unnecessary, and that many veterans are not eligible.[111]First, critics of the program claim that VTC’s create a special class of criminal defendants who receive an automatic pass based on military status, a protection not afforded to similar criminal offenders.[112]  The American Civil Liberties Union (ACLU) has criticized the court as giving veterans a “get out of jail free” card by creating a special class of criminal defendants.[113] Specifically, the ACLU believes that the term veteran is over-inclusive because a great number of veterans are not exposed to combat and do not experience the same kinds of trauma as combat veterans.[114] In addition, critics have pointed out that many civilians also suffer from PTSD and yet are not given this special treatment.[115]  In response to this criticism, many states require a nexus between the criminal behavior and the triggered combat.[116]  Many veteran advocates argue that this nexus is unnecessary because veterans are already recognized as a special class.[117] “Veterans already receive many status-based benefits: medical care, loan guarantees, employment preferences and educational support.”[118]  It is fair to say that veterans have made a sacrifice for our country, making them a special class of citizen and deserving of VTC special treatment.A second critique is that VTC’s are unnecessary and that instead of creating a new specialty court, veterans should merely be placed in a state’s existing drug or mental health court.[119] This criticism has been shown to be unwarranted.[120]  The VTC provides a unique service for veterans that cannot be provided by the existing special treatment courts.[121]  The existing courts do not address trauma in the same way that a VTC address military trauma.[122] Because VTC teams (which include peer mentors) are developed and trained in particularized techniques to exclusively handle veteran cases, VTC’s are more efficient than existing special needs courts.[123] While other special needs courts are normally divided into drug courts and mental treatment courts, the VTC wears both hats for its treatment program.A third critique is that VTC eligibility requirements bar many veterans.  Similar to the original VTC in Buffalo, the Kentucky VTC does not accept defendants who have committed violent or sexual offenses.[124] These categorical restrictions limit the VTC to providing treatment only to veterans who have committed non-violent felonies and misdemeanors.[125] But it is precisely the defendants barred by this eligibility requirement that are often in desperate need of rehabilitation.[126] The offenders of more serious crimes face serious penalties, and first time offenders would be better served by a system of treatment and mentoring.[127] Although there is a compelling interest in rehabilitating the veterans, if a veteran offender commits a seriously heinous crime like premeditated murder or is a multiple offender, non-rehabilitative forms of punishment may be more appropriate.[128] By changing the eligibility guidelines to allow violent criminals to participate, a VTC judge (or team) would have the option to grant rehabilitation and not have a bright line rule that excludes all violent offenders. Further, even if violent offenders were not given eligibility, many states and the federal government have incorporated sentencing mitigation for all convicted veterans.[129]A fourth critique of the VTC is cost.  Specialty courts have tendency to be more expensive than traditional courts.[130] However, the cost of the VTC is not nearly as expensive as incarceration or recidivism.  In Cook County Illinois, for example, the VTC rehabilitative programs saved the county $595,206 in incarceration costs.[131] And the project manager of the VTC in Buffalo, New York, noted that “[w]hile it may seem more costly for veterans to go through treatment programs under the direction of the Buffalo Court, it actually costs less than ten percent of the total amount spent on incarcerating an individual.”[132]

IV. State Statutory Creation of the VTC compared to Judicial Creation

          The VTC in Buffalo, New York became the model for other states. There are now 220 different court programs in over twenty-five different states.[133] States have taken two different approaches in the creation of the VTC. States like California, Texas, Colorado, Illinois, Oregon, Virginia, Maine, Michigan, Mississippi, Florida, Louisiana, Missouri, Tennessee, South Carolina, Rhode Island, and Utah have passed legislation and statutes to specifically permit the establishment of local VTC’s.[134]  The remaining States that have VTC programs, like Kentucky, have done so directly through their local court systems.Each state may follow a different administrative model, but all VTC’s grant a defense attorney the opportunity to lessen their client’s incarceration and possibly conviction using rehabilitative programs.[135]  The Supreme Court of Kentucky has done an excellent job creating the five VTC’s and their guidelines. However, to ensure absolute clarity and awareness of the VTC program, the Kentucky legislature should take the next step and pass comprehensive legislation.Two strong models for Kentucky to look to for such legislation would be Louisiana and Michigan.[136] Both statutes grant the power to designate VTC programs and grant the administrative power to the judge presiding over that judicial district.[137] The statutes also fully explain the scope of the veteran’s participation in the VTC[138] and the authority of the judge, with Louisiana granting its judges the powers to impose probation, to confine a participant to a treatment facility, or reject someone from the program completely.[139] The statutes further specify the types of evidence needed to prove the veteran is eligible for the program,[140] and that funding for the programs will come from the federal government, the state and in some instances out of the participating veteran’s pocket.[141] The Michigan statute specifically adopts the ten key components of a VTC that were identified by Justice for Vets.[142] Further, the Michigan statue allows VTC’s to accept participants from other jurisdictions in the state if a VTC is unavailable where the participant is charged.[143] By providing this vast amount of information about general qualifications, formation processes, funding, and jurisdiction these states have created a clear inclusive VTC model statute.By enacting a similar statute, Kentucky would give clarity to practicing attorneys, judges, and veterans who find themselves in the criminal justice system. It would allow more veterans to participate in the VTC, even if they did not live the same jurisdiction as a VTC. And further, enacting a similar statute would provide additional funding for the creation of new VTC’s throughout the state.

V. Examination of Federal and State Sentencing Mitigation

            Although VTC programs help many, a great number of veterans in the criminal justice system are either ineligible for the VTC program or do not live in a jurisdiction that has a VTC. The Supreme Court of the United States and many states have recognized this issue and now require evidence of a veteran’s service history be shown as a possible mitigating factor in a sentencing determination.[144]

A. Porter v. McCollum and Federal Sentencing Mitigation

            In Porter v. McCollum, the Supreme Court of the United States recognized that when deciding the competency of a defendant, his or her military service should be considered during sentencing.[145] The defendant in Porter was a Korean War veteran who had been convicted of murdering his girlfriend.[146] During the sentencing phase, the defendant’s attorney did not present any mitigating evidence regarding the defendant’s military service or mental health.[147] Because of the lack of mitigating evidence, the trial court imposed the death penalty.[148]  The Court reversed the trial court’s sentence and held:

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as [defendant] did. Moreover, the relevance of [defendant’s] extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on [defendant].[149]

The Court acknowledged the connection between PTSD and criminal behavior, creating a legal duty for defense attorneys to present evidence of military service, service-related mental health or available treatment options.[150]Fortunately, in 2010, the United States Sentencing Commission amended the federal guidelines to allow federal district judges to take into account a defendant’s military status during the sentencing phase in both capital and non-capital cases.[151] §5H1.11 of the Sentencing Guidelines Manual provides “[m]ilitary service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the  guidelines.”[152] This guideline provides a tool for federal judges to depart from a normal sentence and look for more rehabilitative forms of punishment.The result of the Porter case and the amendment of the sentencing guidelines prove that the federal government recognizes the unique situation that veterans face in criminal court.

B. State Sentencing Statutes

            Sentencing mitigation for veterans has not only emerged in federal courts—some states have adopted this type of mitigation. The five states that currently have sentencing statutes are Minnesota, California, Nevada, New Hampshire, and Rhode Island.[153] Like the federal sentencing guidelines, these statutes make the veteran’s service a relevant consideration during sentencing.[154]The Minnesota statute, for example, provides that: “[w]hen a defendant . . . is convicted of a crime, the court shall inquire whether the defendant is currently serving in or is a veteran of the armed forces of the United States.”[155]  If the veteran has been diagnosed with a mental illness, the court is then allowed to consult with the Department of Veteran Affairs or any other agency that could provide relevant information about the treatment options for the defendant.[156] Finally, the sentencing judge is to “consider the treatment recommendations of any diagnosing or treating mental health professional together with the treatment options available to the defendant in imposing sentence.”[157]The law is designed to ensure that mental health diagnoses and treatment are taken into account when sentencing a veteran.[158] It gives judges tools to make the most informed decision when determining a sentence of incarceration or rehabilitation.[159]  This approach gets to the root of the problem by recognizing that probationary, rehabilitative treatment of veterans is a better option than incarceration.[160]  Additionally, these statutes allow rehabilitation for veterans who have committed a violent crime which bars them from most VTC’s. Thus, these mitigation statutes act as a safety net for veterans who do not qualify for the VTC.

VI. The need for the Kentucky state legislature to take action. 

            There are approximately 331,000 veterans in Kentucky,[161] a number that will surely rise over the next few years as the wars in the Middle East wind down. A great number of these veterans will return to civilian life suffering from the mental trauma caused by living for long periods in extremely dangerous combat zones, being injured by IEDs, or being sexually assaulted. Of these veterans, many will face troubling problems while readjusting to civilian life and run afoul of the Kentucky criminal justice system.  Helping the greatest number of veterans should be Kentucky’s goal by either extended utilization of the VTC or by passing sentencing guidelines that consider a convicted criminal’s military background.  First, the Kentucky legislature should take action to attain this goal by passing VTC legislation similar to Michigan; such legislation would ideally set out eligibility qualifications, provide state funding for the creation of new VTC’s, and allow violent veteran offenders an opportunity to participate in the program. Second, the Kentucky legislature should pass a sentencing mitigation guideline that is similar to Minnesota’s.Addressing the funding issue would be an important step for the creation of new VTC’s around the state. Funding for the Kentucky VTC programs are currently based on grants given by the federal government.[162]  The original Jefferson County program was created by funding through a grant from the federal government and was to only last for the first three years of the program.[163] But what will happen if federal funding is revoked? A legislative answer is needed to give the VTC a full opportunity in Kentucky. It would be wise to provide state funds and, in certain instances, demand the participating veteran to bear some of the treatment costs. Providing state funds and requiring some veterans to pay for treatment may encourage courts in rural areas of Kentucky to create VTC’s.Further, if Kentucky followed Michigan’s lead[164] and allowed for veterans to transfer between jurisdictions, it would solve the restrictions placed on the current program. There are obvious geographical issues that bar many veterans living in rural areas from access to the Kentucky VTC’s. Researchers have noted that many of the veteran’s courts tend to be only created in larger metropolitan areas.[165] This is true in Kentucky where three of the five VTC’s are located in Louisville, Lexington, and Northern Kentucky (which is part of the greater Cincinnati area).[166] Additionally, these courts are all located in the central and western-central parts of the state. Many of the veterans returning from OIF/OEF are members of the reserve force and National Guard units and are more likely to be from rural or suburban areas.[167]  The veterans in the far eastern and western parts of Kentucky are geographically prevented from benefitting from VTC’s even if they are eligible for the program.  The Kentucky legislature should follow the example set by Michigan and allow veterans to transfer to VTC’s in a different jurisdiction.[168]As discussed above, many of the current VTC’s, including those in Kentucky, do not allow veterans that have committed violent crimes to participate and do not recognize MST as a cognizable injury.[169]  Kentucky should consider expanding the VTC to these veterans who have committed violent offenses. This does not mean that VTC should be forced to accept every violent offender, as the deciding judge should be given wide deference to determine if the VTC is appropriate. Deference would allow for first time offenders to be afforded treatment while denying treatment to multiple offenders and offenders who have committed premeditated crimes. In addition to allowing violent offenders, Kentucky should extend the VTC to veterans suffering from MST. If the legislature does not want to include these violent offenders, they should strongly consider adding sentencing guidelines that consider military service.There is currently no sentencing guideline that considers a convicted defendant’s military history in Kentucky.[170] Kentucky should look to states like Minnesota to model such sentencing guidelines. Giving trial judges the option between incarceration and rehabilitation would be highly useful to help veterans who do not qualify for the VTC or do not live in a jurisdiction with a VTC. The Minnesota statute gives the judge a large grant of discretion to choose an appropriate rehabilitation plan or incarceration for the veteran.[171] This could be a VTC program, if available in that jurisdiction, but also could be an appropriate treatment plan from the Veterans Affairs office or a private outpatient treatment plan.Additionally, this kind of statute would provide rehabilitation to violent veterans.  Under the Kentucky VTC guidelines, violent offenses are not eligible for the program.[172] Many of the veterans who are arrested for violent behavior are suffering from issues that stem from their military service.[173] By using rehabilitation instead of incarceration for violent veteran criminals, the Kentucky judicial system would be getting to the root of the problem, save money spent on incarceration, and likely prevent future violent crimes.

Conclusion

            Kentucky needs to continue the work that it has started by promoting the creation of more VTC’s in the state by enacting state statutes that comprehensively define VTC’s and enacting statutes that allow for a trial judge to consider a criminal’s military service when determining an appropriate sentence.  This kind of approach would ensure that veterans residing in Kentucky who suffer from PTSD, TBI, MST, and other injuries of war are given the rehabilitation that they need.  Kentucky has a duty to show compassion for these men and women who have prepared for and fought in wars by honoring their sacrifices. 

---

[1] J.D. expected 2017, University of Kentucky College of Law.

[2] David Brooks, The Moral Injury, N.Y. Times (Feb 17, 2015), http://www.nytimes.com/2015/02/17/opinion/david-brooks-the-moral-injury.html?_r=0.

[3] U.S. Dep’t of Veterans Affairs, How Common is PTSD?, PTSD: National Center for PTSD (Oct. 3, 2016), https://www.ptsd.va.gov/public/ptsd-overview/basics/how-common-is-ptsd.asp.

[4] See PTSD and Substance Abuse in Veterans, U.S. Dep’t of Veteran Aff.  http://www.ptsd.va.gov/public/problems/ptsd_substance_abuse_veterans.asp (“Almost 1 out of every 3 Veterans seeking treatment for [Substance Use Disorder] also has PTSD.”).

[5] The History, Justice for Vets, http://justiceforvets.org/vtc-history; Veterans Treatment Court, Ky Court of Justice, https://courts.ky.gov/courtprograms/vtc/Pages/default.aspx (last visited Sept. 8 2017).

[6] Brockton Hunter, Echoes of War: Combat Trauma, Criminal Behavior and How We Can Do a Better Job This Time Around, Securing Access in a Diverse Society, Ky. Bar Ass’n, at 18 (June 17, 2015), http://www.kybar.org/?page=2015Convention (follow “PDF” hyperlink beside “Echoes of War: Combat Trauma, Criminal Behavior & How We Can Do Better This Time Around”) (last visited Sept. 9, 2017).

[7] What is a Veterans Treatment Court?, Justice for Vets, http://www.justiceforvets.org/what-is-a-veterans-treatment-court.

[8]  Id.; See also TakePart, Veterans Treatment Courts Explained, Youtube (Feb 10, 2015) https://www.youtube.com/watch?v=PrpytvX3YSE&feature=youtu.be.

[9] Id.

[10] Id.

[11] Leigh Anne Hiatt, Jefferson County Veterans Treatment Court is First of its Kind in Kentucky, Kentucky.gov (Nov. 26, 2012), https://courts.ky.gov/pages/newsroom.aspx?viewMode=PressRelease&pressReleaseGUID=%7BDB240396-FCC4-4300-81A9-8F7AC4684DA6%7D.

[12] Veterans Treatment Court Programs, Ky. Court. of Justice, http://courts.ky.gov/courtprograms/vtc/Pages/vtcprograms.aspx.

[13] Post-Traumatic Stress Disorder, Nat’l Inst. of Mental Health, https://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.shtml.

[14] Terri Tanielian & Lisa H. Jaycox, Invisible Wounds of War: Psychological and Cognitive Injuries, Their Consequences, and Services to Assist Recovery,  RAND Ctr. for Military Health Policy Research, at 12 (2008) http://www.rand.org/content/dam/rand/pubs/monographs/2008/RAND_MG720.pdf.

[15] Symptoms of PTSD, U.S. Dep’t of Veteran Aff., (Aug. 13, 2015), https://www.ptsd.va.gov/public/ptsd-overview/basics/symptoms_of_ptsd.asp.

[16]Id.

[17] Id.; see also Erinn Gansel, Military Service-Related PTSD and the Criminal Justice System: Treatment as an Alternative to Incarceration, 23 S. Cal. Interdisc. L. J. 147, 153 (2014).

[18] Id.

[19] Id.

[20] Id.

[21] See Sadie F. Dingfelder, The Military’s War on Stigma, American Psychological Ass’n, 40 Monitor on Psychology, no. 6, 2009 at 52; See also Soledad O’Brian, The Stigma that Stops Veterans From Getting Help for PTSD, Public Broadcast Service (March 29, 2017) http://www.pbs.org/newshour/bb/stigma-stops-veterans-getting-help-ptsd/.

[22] See Mental Health Effects of Serving in Afghanistan and Iraq, U.S. Dep’t of Veteran Aff., https://www.ptsd.va.gov/public/ptsd-overview/reintegration/overview-mental-health-effects.asp.

[23] Id.

[24] Hunter, supra note 6, at 9.

[25] See Alex Dixon, July Marks 40th Anniversary of All-Volunteer Army, (July 2, 2013), https://www.army.mil/article/106813/July_marks_40th_anniversary_of_all_volunteer_Army.

[26] Id. at 2.

[27] Id. at 10.

[28] Anthony E. Giardino, Combat Veterans, Mental Health Issues, and the Death Penalty: Addressing the Impact of Post-Traumatic Stress Disorder and Traumatic Brain Injury, 77 Fordham J. Rev. 2955, 2976 (2009); see e.g., Jeffery Lewis Wieand, Jr., Continuing Combat at Home: How Judges and Attorneys Can Improve Their Handling of Combat Veterans with PTSD in Criminal Courts, 19 Wash. & Lee J. Civil Rts. & Soc. Just. 227, 231 (2012).

[29] PTSD: National Center for PTSD, Traumatic Brain Injury and PTSD, U.S. Dep’t of Veterans Aff., http:// www.ptsd.va.gov /public/problems/traumatic_brain_injury_and_ptsd.asp (last visited April 14, 2017) (“[a] TBI is a sudden blow to the head that that often occurs when there is an explosion or an accidental fall . . . When an IED explodes it emits a concussive blast that often leaves a person disoriented and unconscious . . . This head trauma essentially causes a concussion and the symptoms included headaches, trouble sleeping, memory problems, troubles staying focused, depression, anger, anxiety, and personality changes.”).

[30] See 38 U.S.C. § 1720D(a)(1) (West 2015) (defining MST as “psychological trauma, which in the judgment of a mental health professional employment by the Department [of Veteran Affairs], resulted from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the veteran was serving on active duty, active duty training, or inactive duty training.”).

[31] PTSD: National Center for PTSD, Military Sexual Trauma, U.S. Dep’t of Veterans Aff., http://www.ptsd.va.gov/public/types/violence/military-sexual-trauma-general.asp (last visited April 14, 2017).

[32] Alexandra Besso, Veterans As Victims of Military Sexual Assault: Unequal Access to Ptsd Disability Benefits and Judicial Remedies, 23 Buff. J. Gender, L. & Soc. Pol'y 73, 75 (2015) (noting the substantial challenges for the victims of MTS to be recognized by Veterans Affairs as having a legitimate PTSD); see also Rachel Kimerling, PhD, Amy E. Street, PhD, Joanne Pavao, MPH, Mark W. Smith, PhD, Ruth C. Cronkite, PhD, Tyson h. Holmes, PhD, and Susan M. Frayne, MD, MPH, Military-Related Sexual Trauma Among Veterans Health Administration Patients Returning From Afghanistan and Iraq, 100 Am. J. Pub. Health 8, 1409, 1410 (August, 2010).

[33] See Besso, supra note 34, at 75.

[34] PTSD: National Center for PTSD, supra note 31.

[35] PTSD: National Center for PTSD, supra note 31.

[36] PTSD: National Center for PTSD, supra note 31.

[37] Hunter, supra note 6, at 14-15.

[38] F. Don Nidiffer & Spencer Leach, To Hell and Back: Evolution of Combat-Related Post Traumatic Stress Disorder, 29 Dev. Mental Health L. 1, 12 (2010).

[39] Id.

[40] What is a Veterans Treatment Court, Just. for Vets, http://www.justiceforvets.org/what-is-a-veterans-treatment-court (last visited on April 14, 2017).

[41] Hunter, supra note 6, at 1-2.

[42] Hunter supra note 6, at 1-2.

[43] Hunter, supra note 6, at 1-2.

[44] See PTSD: National Center for PTSD, PTSD and Substance Abuse in Veterans, U.S. Dep’t of Veterans Aff., http://www.ptsd.va.gov/public/problems/ptsd_substance_abuse_veterans.asp (last visited April 14, 2017).

[45] See Nat’l Coalition for Homeless Veterans, Background & Statistics, Nat’l Coalition for Homeless Veterans, http://nchv.org/index.php/news/media/background_and_statistics/ (last visited April 14, 2017).

[46] What is a Veteran’s Treatment Court?, supra note 42.

[47] Defense Health Board Task Force on Mental Health, An Achievable Vision: Report of the Department of Defense Task Force on Mental Health 21-22. (June 2007) (located at http://justiceforvets.org/sites/default/files/files/Dept%20of%20Defense%2C%20mental%20health%20report.pdf).

[48] PTSD: National Center for PTSD, PTSD and Substance Abuse in Veterans, U.S. Dep’t of Veteran Aff., http://www.ptsd.va.gov/public/problems/ptsd_substance_abuse_veterans.asp (last visited April 14, 2017).

[49] Id.

[50] Id.

[51] Jen Christensen, Pill-addicted Veterans get Second Chance with Treatment Court, Cnn.com (Aug. 27, 2014, 3:25 PM) http://www.cnn.com/2014/08/26/health/veterans-treatment-court/.

[52] Id.; see also Half of Veterans Prescribed Medical Opioids Continue to Use Them Chronically, ScienceDaily (Mar. 8, 2014) https://www.sciencedaily.com/releases/2014/03/140308094821.htm.

[53] Id.

[54] Alcohol, Drugs and Crime, Nat’l Couns. on Alcoholism and Drug Dependence Inc., https://ncadd.org/about-addiction/alcohol-drugs-and-crime (last visited April 14, 2017).

[55] See id.

[56] Brandt A. Smith, Posttraumatic Stress Disorder (PTSD) in the Criminal Justice System, The Military Psychologist (Apr. 2014) http://www.apadivisions.org/division-19/publications/newsletters/military/2014/04/ptsd.aspx (last visited April 14, 2017).

[57] Id.

[58] PTSD: National Center for PTSD, Anger and Trauma, U.S. Dep’t of Veterans Aff., http://www.ptsd.va.gov/public/problems/anger-and-trauma.asp (last visited April 14, 2017).

[59] Id.

[60] See Post-Traumatic Stress Disorder, Nat’l Inst. of Mental Health, (Feb. 2016), https://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.shtml.

[61] See Smith, supra note 56.

[62] Id.

[63] History, Justice for Vets http://www.justiceforvets.org/vtc-history (last visited April 14, 2017).

[64] Id.

[65] Id.

[66] See What is a Veteran’s Treatment Court?, supra note 40.

[67] Paul Freese & Natalie Klasky, Best Emerging Holistic Advocacy Practices to Break the Cyclical Trauma, Depression, Alienation and Criminalization Afflicting Our Returning War Heroes, 5 U. Miami Nat'l Sec. & Armed Conflict L. Rev. 85, 103 (2015).

[68] Madeline McGrane, Post-Traumatic Stress Disorder in the Military: The Need for Legislative Improvement of Mental Health Care for Veterans of Operation Iraqi Freedom and Operation Enduring Freedom, 24 J.L. & Health 183, 208-14 (2010).

[69] Veterans Treatment Courts, Office of Nat’l Drug Control Policy, (Dec. 2010), https://obamawhitehouse.archives.gov/sites/default/files/ondcp/Fact_Sheets/veterans_treatment_courts_fact_sheet_12-13-10.pdf.

[70] Veterans Treatment Court, Kentuky.gov, http://courts.ky.gov/courtprograms/vtc/Pages/default.aspx.

[71] Id.

[72]Ten Key Components of Veterans Treatment Court, Justice For Vets, http://justiceforvets.org/sites/default/files/files/Ten%20Key%20Components%20of%20Veterans%20Treatment%20Courts%20.pdf.

[73] Id.

[74] Id.

[75] Id.

[76] Id.

[77] Ten Key Components of Veterans Treatment Court, supra note 72.

[78] Id.

[79] Id.

[80] Id.

[81] Id.

[82] Id. 

[83] What’s Stopping You? Overcome Barriers to Care, U.S. Dep’t of Veteran Affairs, http://www.ptsd.va.gov/public/treatment/therapy-med/Stigma_Barriers_to_Care.asp.

[84] Id.

[85] Jack W. Smith, The Anchorage, Alaska Veterans Court and Recidivism: July 6, 2004 - December 31, 2010, 29 Alaska L. Rev. 93, 107–08 (2012).

[86] Justin Holbrook & Sara Anderson, Veterans Courts: Early Outcomes and Key Indicators for Success 30, 40 (Widener Law Sch. Legal Studies Research Paper Series No. 11-25), available at http://ssrn.com/abstract=1912655.

[87] Matthew R. Durose et al., Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (Apr. 2014), https://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf.

[88] Strengthening Our Military Families, U.S. Department of Justice, http://www.justice.gov/joiningforces.

[89] Jim Warren, Fayette Court Program Allows Veterans to Get Physical, Psychological Help Instead of Jail Time, Kentucky.com (Jan. 1, 2014, 10:40 PM), http://www.kentucky.com/news/local/crime/article44464776.html.

[90] Leigh Anne Hiatt, Jefferson County Veterans Treatment Court is First of its Kind in Kentucky, Kentucky.gov (Nov. 20, 2012), http://migration.kentucky.gov/Newsroom/kycourts/112612LAH1.htm.

[91] Leigh Anne Hiatt, Justice Will T. Scott Testifies About Plans to Help Kentucky Veterans Gain Better Access to Legal and Other Services, Kentucky.gov (July 25, 2012), http://migration.kentucky.gov/Newsroom/kycourts/072412LAH1.htm.

[92] Id.

[93]Id.

[94] Kentucky Court of Justice, Veterans Treatment Court, Kentucky.Gov, http://courts.ky.gov/courtprograms/vtc/Pages/default.aspx (last visited April 2, 2017); Kentucky Court of Justice, Kentucky Drug Court: Saving Costs, Saving Lives, Kentucky.Gov (March, 2017), http://courts.ky.gov/courtprograms/drugcourt/Documents/KYDrugCourtSitesMap.pdf.

[95]  Leigh Anne Hiatt, Jefferson County Veterans Treatment Court is First of its Kind in Kentucky, Kentucky Court of Justice, Kentucky.gov (Nov. 20, 2012) http://migration.kentucky.gov/Newsroom/kycourts/112612LAH1.htm.

[96] Kentucky Court of Justice, Veterans Treatment Court, Kentucky.Gov, http://courts.ky.gov/courtprograms/vtc/Pages/default.aspx (last visited April 2, 2017).

[97] See id.

[98] Id.

[99] Id.

[100] Id; The Ten Key Components of Veterans Treatment Court, supra note 72.

[101] Kentucky Court of Justice, Veterans Treatment Court, Kentucky.Gov, http://courts.ky.gov/courtprograms/vtc/Pages/default.aspx (last visited April 2, 2017).

[102] Id.

[103] Veterans Treatment Court Programs, Kentucky.gov, http://courts.ky.gov/courtprograms/vtc/Pages/vtcprograms.aspx (last visited April 2, 2017).[105] H.R. 118, 13 Reg. Sess. (Ky. 2013).

[106] Kentucky Court of Justice, Eligibility & Process, Kentucky.gov. http://courts.ky.gov/courtprograms/vtc/Pages/Eligibility.aspx (last visited Apr. 2, 2017) (emphasis added).

[107] Id.

[108] Id.

[109] Id.

[110] See generally Ben Kappelman, When Rape Isn't Like Combat: The Disparity Between Benefits for Post-Traumatic Stress Disorder for Combat Veterans and Benefits for Victims of Military Sexual Assault, 44 Suffolk U. L. Rev. 545 (2011) (explaining that it is difficult for victims of military sexual assault to establish a service connection between PTSD and their assault, and thus it is hard for them to obtain benefits).

[111] Tiffany Cartwright, “To Care for Him Who Shall Have Borne the Battle": The Recent Development of Veterans Treatment Courts in America, 22 Stan. L. & Pol'y Rev. 295, 307 (2011).

[112] Allison E. Jones, Veterans Treatment Courts: Do Status-Based Problem-Solving Courts Create an Improper Privileged Class of Criminal Defendants? 43 Wash. U. J.L. & Pol'y 307, 318 (2014).

[113] Cartwright, supra note 111, at 307.

[114] Id. at 307-08.

[115] Id.

[116] See id. (noting that Nevada and Texas require this tight nexus).

[117] See Mark A. McCormick-Goodhart, Leaving No Veteran Behind: Policies and Perspectives on Combat Trauma, Veterans Courts, and the Rehabilitative Approach to Criminal Behavior, 117 Penn St. L. Rev. 895, 921 (2013).

[118] Id.

[119] Id. at 922.

[120] See generally id. at  922-23 (explaining that veterans and their causes are unique and that problem-solving courts do not adequately address trauma in the same way as specialty courts).

[121] Id.

[122] Id.

[123] Id. at 923.

[124] See Eligibility & Processes, Kentucky.gov, http://courts.ky.gov/courtprograms/vtc/Pages/Eligibility.aspx (last visited Mar. 26, 2017); see also Gansel, supra note 17, at177-78 (2014).

[125] See Gansel supra note 17, at 178.

[126] Id. at 177-78.

[127] Id. at 178.

[128] Id. at 178-79.

[129] Infra section V of this note.

[130] Taylor Brummett, Veterans Treatment Court: An Experiment in Therapeutic Jurisprudence for Combat Veterans, Pacific U. CommonKnowledge (2013), http://commons.pacificu.edu/cgi/viewcontent.cgi?article=1019&context=cassoc.

[131] Gavriel Jacobs, Katharine McFarland, & Gabe Ledeen, Serving Those Who Served: Veterans Treatment Courts in Theory and Practice, law.stanford.edu, http://law.stanford.edu/wp-content/uploads/sites/default/files/child-page/266901/doc/slspublic/Jacobs_McFarland_Ledeen.pdf.

[132] Brummet, supra note 130.

[133] See The History, Justice for Vets, http://www.justiceforvets.org/vtc-history (last visited Jan. 19, 2016).

[134] Me. Rev. Stat. Ann. tit. 4, § 433 (2012); Mich. Comp. Laws Ann. § 600.1201 (West 2012); Miss. Code. Ann. § 9-25-1 (West 2014); Fl. Stat. Ann. § 3.31 (West 2016); 730 Ill. Comp. Stat. Ann. 167/15 (West 2012); Colo. Rev. Stat. Ann. § 13-5-144 (West 2010); Mo. Ann. Stat. § 478.008 (West 2013); TX GOVT Code Ann. § 124.002 (West 2015); S.C. Code Ann. § 14-29-30 (2014).

[135] See Brock Hunter, Echoes of War: The Combat Veteran in Criminal Court, http://justiceforvets.org/sites/default/files/2013/Handouts/CG-8/CG-8.pdf (last visited April 7, 2017).

[136] See La. Rev. Stat. Ann. § 13:5366 (2016); see Mich. Comp. Laws Ann. § 600.1201 (West 2012).

[137] La. Stat. Ann. § 13:5366 (Westlaw); Mich. Comp. Laws Ann. § 600.1201 (Westlaw).

[138] La. Stat. Ann. § 13:5366(B) (Westlaw); Mich. Comp. Laws Ann. § 600.1208(1) (Westlaw).

[139] La. Stat. Ann. § 13:5366(B) (Westlaw). see also  Mich. Comp. Laws Ann. § 600.1206(2) (Westlaw).

[140] La. Stat. Ann. § 13:5366(6)–(9) (Westlaw); Mich. Comp. Laws Ann. §§ 600.1203–600.1204 (Westlaw).

[141] La. Stat. Ann. § 13:5388(C) (Westlaw); Mich. Comp. Laws Ann. §§ 600.1206(4), 1208(1), 600.1211(1) (Westlaw).

[142] Mich. Comp. Laws Ann. § 600.1201(1) (Westlaw); Veterans Treatment Court, supra note 70.

[143] Mich. Comp. Laws Ann. § 600.1201(4) (Westlaw).

[144] Betsy J. Grey, Neuroscience, PTSD, and Sentencing Mitigation, 34 Cardozo L. Rev. 53, 67 (2012); see also Porter v. McCollum, 558 U.S. 30, 40 (2009).

[145] Porter, 558 U.S. at 30-31.

[146] Id.

[147] Id. at 40.

[148] Id. at 32–33.

[149] Id. at 43-44.

[150] See id.; see also Brockton Hunter & Ryan Else, Echoes of War Part Two: Legal Strategies for Defending the Combat Veteran in Criminal Court, TheChampion, Nov. 2013, at 24.

[151] U.S. Sentencing Guidelines Manual §5H1.11 (U.S. Sentencing Comm’n 2010); see also Hunter, supra note 6, at 18.

[152] U.S. Sentencing Guidelines Manual §5H1.11.

[153] Brockton Hunter & Ryan Else, Echoes of War Part Two: Legal Strategies for Defending the Combat Veteran in Criminal Court, TheChampion, Nov. 2013, at 20.

[154] Id.

[155] Minn. Stat. Ann. § 609.115 sub 10(a) (West 2015).

[156] Id. at sub 10(b)(1).

[157]  Id. at sub. 10(c)(2).

[158] Hunter & Else, supra note 153, at 20.

[159] Id.

[160] Id.; see also Cal. Penal Code § 1170.91 (West 2015) (granting judges the authority to consider treatment over incarceration while not mandating that the Courts follow any particular type of sentence).

[161] Serving Veterans in the Commonwealth , Kentucky.gov, http://veterans.ky.gov/Pages/default.aspx.

[162] Veterans Treatment Court, Kentucky Court of Justice, http://courts.ky.gov/courtprograms/vtc/Pages/default.aspx.

[163] Leigh Anne Hiatt, Jefferson County Veterans Treatment Court to hold first graduation, Kentucky Court of Justice Newsroom  (Oct. 21, 2014), http://courts.ky.gov/pages/newsroom.aspx?viewMode=PressRelease&pressReleaseGUID=%7B4AFDCA8F-F303-4DEC-8B6F-4F2040683EB9%7D.

[164] Mich. Comp. Laws Ann. § 600.1201(4) (West 2012).

[165] Morning Edition: Hundreds Of Veterans Courts See Success But More Are Needed, NPR.Org (Jan. 3, 2017), http://www.npr.org/2017/01/03/507983947/special-courts-for-military-veterans-gain-traction.

[166] See Veterans Treatment Court Programs, Kentucky Court of Justice http://courts.ky.gov/courtprograms/vtc/Pages/vtcprograms.aspx.

[167] Cartwright, supra note 111, at 300.

[168] See Mich. Comp. Laws Ann. § 600.1201(4) (West 2012).

[169] See Alexandra Besso, Veterans As Victims of Military Sexual Assault: Unequal Access to Ptsd Disability Benefits and Judicial Remedies, 23 Buff. J. Gender, L. & Soc. Pol'y 73, 75, 79 (2015).

[170] See generally Ky. Rev. Stat. Ann. §§532.005 to 532.400 (West 2016).

[171] Minn. Stat. Ann. § 609.115 sub 10(a) (West 2015).

[172] See Part II of this note.

[173] See Part I of this note.

Consumer Class Conflict: The Battle against Heightened Ascertainability in the Sixth Circuit

Article | 105 KY. L. J. ONLINE | March 13, 2017

Houston Alexander Bragg[1]

The theoretical purpose of class action certification and litigation is to assist groups of plaintiffs, who are “isolated, scattered, and utter strangers to each other,” in procuring legal redress that may be unavailable to them individually.[2] The practical purpose of class action litigation is to create a check on manufacturers and other defendants who cause minimal damage to a multitude of people. Without Federal Rule of Civil Procedure 23 (F.R.C.P. 23) and class action litigation, low-figure consumer harm would lack a remedy. The Third Circuit is waging war on the practical purpose of class action litigation by creating an overwhelming requirement that plaintiffs, at the pretrial stage, be able to produce a “reliable and administratively feasible” apparatus for determining whether a supposed class member falls within the class definition.[3] This prerequisite to class certification acts as a shield to consumer recovery, completely altering the established definition of class ascertainability.

Introduction

It may not be long before consumer class action lawsuits that arise under F.R.C.P. 23(b) are obsolete in the Sixth Circuit. Due to a recent Third Circuit Court of Appeals opinion heightening the ascertainability (also known as identifiability) requirement implicit in class certification, federal circuits may see a major shift in the landscape of class action litigation. Pretrial class certification is the focal point of modern class action practice for both plaintiff and defense attorneys.[4] The certification of a class will almost certainly induce a settlement, whereas the preclusion of a class almost always results in the inevitable abandonment of a group suit.[5] As most highbrows of the Federal Rules of Civil Procedure are already aware[6] and as many scholars have previously explained,[7] the majority of federal circuits have acknowledged[8] and none have expressly rejected[9] that there is an ascertainability requirement implicit in the reading of F.R.C.P. 23.[10] “It is axiomatic that in order for a class action to be certified, a class must exist.”[11] Similarly, it is unsurprising that the implicit ascertainability requirement has been said to require that the class be clearly defined by referencing objective criteria (as opposed to the subjective state of mind of a class member)[12] or, stated another way, the class must be identifiable and susceptible to precise definition.[13] It was a dramatic shift, however, when the Third Circuit and several federal district courts adopted the notion that F.R.C.P. 23(b)(3) imposes an ascertainability requirement on class action plaintiffs that requires the production of a “reliable and administratively feasible” apparatus for determining whether a purported class member falls within the class definition in addition to a clearly defined class referencing objective criteria. [14] Practitioners and scholars call this “heightened ascertainability.”[15]The Third Circuit’s departure from “traditional ascertainability” (if such a new concept can be called “traditional”) met significant resistance from the Seventh Circuit Court of Appeals when, in a recent opinion, it directly opposed the heightened ascertainability requirement.[16] In Mullins v. Direct Digital, the Court of Appeals for the Seventh Circuit held that heightened ascertainability disrupts the plain language balance of factors in F.R.C.P. 23 by placing “absolute priority” on administrability.[17] The Plaintiff in Mullins, representing a class of similar consumers, sued a corporation for fraudulent representation.[18] The Court held that the class definition was clear and based on objective criteria, effectively combating ambiguous, subjective, and fail-safe classes.[19] The Seventh Circuit Court of Appeals refused to require the plaintiff to provide an “administratively feasible” apparatus for determining the members of the class.[20]The Sixth Circuit Court of Appeals has yet to decide whether to adopt, reject, or ignore heightened ascertainability. However, the Sixth Circuit Court of Appeals in Young v. Nationwide Mutual Insurance Company did suggest that “a class must not only exist, the class must be susceptible of precise definition.”[21] In referencing “precision” in its holding, the Sixth Circuit Court of Appeals may have been forewarning of its preference for administrative feasibility similar to that of the Third Circuit; claiming such, however, would be prematurely speculative.The various district courts within the Sixth Circuit that have weighed in on the ascertainability conundrum have demonstrated that there is ample inconsistency and concern as to how the circuit should manage the implicit ascertainability requirement of F.R.C.P. 23. It is critical that the Sixth Circuit refrain from adopting the Third Circuit’s heightened ascertainability. The adoption of heightened ascertainability in the Sixth Circuit would mean a drastic reduction in consumer confidence as well as the practical end to judicial regulation of product safety.This Note will explore the intricacies of the class action ascertainability circuit split between the Third and Seventh Circuits. It will attempt to illuminate the shortcomings of heightened ascertainability and discourage adoption of heightened ascertainability in the Sixth Circuit. Part I of this Note briefly describes the modern requirements for certification of consumer class actions. Part II identifies the ascertainability circuit split, explaining the positions of the Third and Seventh Circuits in detail. Part III argues that traditional ascertainability adequately curtails the three common difficulties concerning class certification leaving no legitimate motive for heightening the ascertainability requirement. Finally, Part IV encourages the Sixth Circuit to refrain from adopting the unnecessary precaution that is Third Circuit heightened ascertainability.

I. The Uphill Battle for Consumers: An Overview of Federal Rule of Civil Procedure 23

Because “[m]odern society seems increasingly to expose men to . . . group injuries for which individually they are in a poor position to seek legal redress,”[22] F.R.C.P. 23 was amended in 1966 to provide legal recourse to groups of consumers who were harmed as a result of another’s misfeasance regardless of their relationship to each other or the magnitude of their injury.[23] Since its establishment, F.R.C.P. 23 has been met with considerable opposition, specifically from consumer defendants and lobbyists. Immense corporations and their subsidiaries often are defendants in consumer class action lawsuits; over time these corporations, and their like-minded representatives, have become the face of class action reform.[24]The current language of F.R.C.P. 23 encompasses four explicit requirements for all class actions:

(1) the proposed class is so numerous that joinder of each individual plaintiff is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.[25]

The current rule also requires that the class fit into one of three functional categories.[26] The most common of these categories, F.R.C.P. 23(b)(3),[27] requires that “the questions of law or fact common to class members predominate over any questions affecting only individual members,” and that the class action be “superior to other available methods for fairly and effectively adjudicating the controversy.”[28]In addition to the statutory requirements of F.R.C.P. 23, the common law also requires that class action plaintiffs be prepared to prove at the pre-trial stage that at least some, if not all, of the above-mentioned prerequisites exist.[29] The court, when determining whether to certify the class, is required to “rigorously analy[ze]” not only the statutory requirements before certifying the class, but also the common law requirements.[30] If any of the requirements, statutory or common-law-based, are absent the class will be precluded and certification will be denied.Finally, recent rhetoric has suggested that F.R.C.P. 23 also includes an implied requirement that the proposed class be ascertainable.[31] The idea is that the class must be clearly defined with reference to objective criteria before certification is proper thereby limiting the indefiniteness inherent in large consumer classes.[32]

The ascertainability requirement serves several important objectives. First, it eliminates serious administrative burdens that are incongruous with the efficiencies expected in a class action by insisting on the easy identification of class members [i.e. the administrability objective]. Second, it protects absent class members by facilitating the best notice practicable under Rule 23(c)(2) in a Rule 23(b)(3) action [i.e. the practicability objective]. Third, it protects defendants by ensuring that those persons who will be bound by the final judgment are clearly identifiable [i.e. the identifiability objective].[33]

While the super-majority of circuits have recognized that this implicit requirement does indeed exist,[34] considerable controversy still remains as to how ascertainability should be applied to consumer class actions.In summation, even without the heightened ascertainability requirement proposed by the Third Circuit, consumers, at present, face more than seven prerequisites to Rule 23(b)(3) class certification. Consumer plaintiffs must prove the four explicit class action requirements set forth in F.R.C.P. 23(a) (numerosity, commonality, typicality, and adequacy), the two additional consumer class requirements in F.R.C.P. 23(b)(3) (predominance and superiority), rigorous pretrial common-law factual requirements, and the traditional ascertainability requirement implicit in F.R.C.P. 23. The up-hill battle consumer-plaintiffs currently face sufficiently curtails frivolous class action claims without the need for heightened ascertainability.

II. Third Circuit Heightened Ascertainability vs. Seventh Circuit Traditional Ascertainability: A Comparison

To require that a class of individuals be ascertainable before proceeding to trial is logical. Without such a prerequisite, plaintiffs’ counsel would not have to define or identify the parameters concerning his or her clients and their lawsuit until after class certification.[35] While the legitimacy of ascertainability is widely accepted, the precision with which a class must be ascertained is the subject of heated debate.[36] The two competing views concerning ascertainability (heightened ascertainability and traditional ascertainability) have created a rift in the federal common law. On one hand, a high bar for ascertainability would work to combat frivolous claims and protect industry innovation, but on the other hand, a low bar for ascertainability allows for consumer regulation of dangerous products and judicial latitude in determining whether to certify a class.The heightened ascertainability approach to identifiability was proffered by the Third Circuit Court of Appeals in Carrera v. Bayer Corporation.[37] The United States District Court of New Jersey certified a class of individuals who purchased a weight management product called “One-a-Day WeightSmart” produced by the Bayer Corporation.[38] The Plaintiffs argued that Bayer made false claims about WeightSmart’s metabolism-enhancing properties even though they knew those statements were false.[39] After rejecting a nationwide class of consumers who purchased WeightSmart, the lower court certified a class of consumers who purchased WeightSmart in Florida.[40] Bayer claimed that ascertaining the class of WeightSmart purchasers would be nearly impossible because the entirety of the class action hinged on each individual plaintiff retaining a three-year-old proof of purchase receipt.[41]In certifying the class, the lower court cited the Eleventh Circuit saying “the manageability inquiry ‘will rarely, if ever, be in itself sufficient to prevent certification of a class. “Courts are generally reluctant to deny class certification based on speculative problems with case management.”’”[42] The court held that the obstacles facing the plaintiffs’ identification of its class members were not insurmountable, at least in part, because the claims involved were relatively small and counsel identified methods of verifying their claims.[43] Because plaintiffs’ counsel clearly defined the class by referencing receipts, loyalty club membership, old packaging, affidavits by consumers, and online purchase records (i.e. objective criteria), the lower court held that the problems with the manageability of the class were insufficient to prevent certification.[44]The Third Circuit Court of Appeals, under an abuse of discretion standard,[45] reversed the lower court’s decision when it extended its hardline approach to ascertainability fashioned in Marcus v. BMW of North America.[46] The Third Circuit expressly rejected the lower courts’ findings by holding that “[a]scertainability mandates a rigorous approach at the outset because of the key roles it plays as part of a Rule 23(b)(3) class action lawsuit,”[47] and that “[i]f class members are impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.”[48] The court set forth three primary reasons for heightening the widely accepted standard for ascertainability. The court determined that “[f]irst, at the commencement of a class action, ascertainability and a clear class definition allow potential class members to identify themselves for purposes of opting out of a class.”[49] Second, it ensures that a defendant's rights are protected by the class action mechanism and that vague, subjectively defined, and fail-safe classes are not certified.[50] Third, it ensures that the parties can identify class members in a manner consistent with the efficiencies of a class action.[51] The method of determining whether someone is in the class must be "administratively feasible."[52]Under the Third Circuit’s definition of ascertainability, a plaintiff does not satisfy the ascertainability requirement if additional individualized fact-finding will be required to prove class membership.[53] The primary focus of heightened ascertainability is simply administrative feasibility. According to commentators, “[a]dministrative feasibility means . . . identifying class members [through] a manageable process that does not require much, if any, individual factual inquiry."[54]In direct response to the Third Circuit’s heightened ascertainability holdings in Carrera and Marcus, the Seventh Circuit reaffirmed its commitment to the established traditional definition of ascertainability, expressly rejecting heightened ascertainability in Mullins v. Direct Digital, L.L.C.[55] In Mullins, the lower court certified a class of consumers who purchased a joint support supplement drug called “Instaflex.”[56] The plaintiffs claimed that Direct Digital made misrepresentations about its product by asserting that Instaflex would “relieve discomfort,” “increase mobility,” and that it was “scientifically formulated . . . and clinically tested” when, in reality, it was nothing more than a sugar pill.[57] The Eastern Division of the United States District Court of Illinois held that the consumer class of Instaflex purchasers was ascertainable because it was “objectively contained to all individuals who purchased Instaflex for personal use during the class period and the class period is finite.”[58] The court held that in order to establish pretrial ascertainability, the class should be restricted to individuals who purchased the supplement within the applicable statute of limitations (the class period), in certain states (the class states), for personal use, and only until the manufacturer notice was disseminated.[59]The Seventh Circuit Court of Appeals upheld the lower court’s class certification, refusing to adopt the Third Circuit’s heightened ascertainability approach proposed by the defendants, Direct Digital.[60] In its decision, the Seventh Circuit deconstructed the Third Circuit’s heightened ascertainability approach. It observed:

As it stands now, the Third Circuit’s test for ascertainability has two prongs: (1) the class must be “defined with reference to objective criteria” (consistent with long-established law discussed above), and (2) there must be “a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.”[61]

The Seventh Circuit determined that heightened ascertainability moves well beyond the examination of class adequacy itself. It transforms the requirement into an examination of the potential difficulties in both identifying particular members of a proposed class and evaluating the validity of class members’ potential claims.[62] The Seventh Circuit concluded in part that heightened ascertainability’s focus on administrability exists as a detriment to other equally important considerations.[63]The Seventh Circuit Court of Appeals held that Direct Digital’s apprehensions were sufficiently extinguished by the numerous explicit requirements of F.R.C.P. 23 and traditional ascertainability; the policy, equity, and due process arguments proposed by defendant, Direct Digital were curtailed by existing jurisprudence.[64] Further, it held that the second prong of the Third Circuit’s heightened ascertainability test skews the balance of class action considerations by focusing too much on the administrability of the class action litigation.[65] The Seventh Circuit suggested that, in practice, the heightened ascertainability requirement could “erect a nearly insurmountable hurdle at the class certification stage in situations where a class action is the only viable way to pursue valid, but small, individual claims.”[66]The Seventh and Third Circuits have bifurcated the doctrine of class action ascertainability. Both Carrera and Mullins were misrepresentation cases involving a class of consumers who purchased an over-the-counter drug that failed to live up to the company’s promises. In the Third Circuit, the Mullins class would have most likely been precluded, whereas in the Seventh Circuit, the Carrera class would almost certainly have been certified. Most jurisdictions will, at some point, be faced with the question of whether they are willing to deny class certification based on speculative problems with case management. At that point, the jurisdiction will have to choose whether to follow the established norms of traditional ascertainability, adopt heightened ascertainability, or create a separate approach to ascertainability, further complicating class action jurisprudence.

III. Traditional Ascertainability Accounts for the Totality of Class Action Concerns: A Balanced Approach to Ascertainability

“The policy concerns motivating the heightened ascertainability requirement are better addressed by applying carefully the explicit requirements of Rule 23(a) and especially (b)(3).”[67] The existing requirements of F.R.C.P. 23 adequately, and without excess, address the balance of interests that class action litigation was created to protect.[68] As stated in Mullins, the Third Circuit’s approach to ascertainability is flawed; it gives unbalanced priority to a single objective, administrability, which results in an upset of the established F.R.C.P. 23 balance.[69]The Third Circuit Court of Appeals, in its landmark heightened ascertainability case, Carrera, set forth three separate, yet equally important, functions that the ascertainability requirement serves to protect: administrability, practicability, and identifiability.[70] Nowhere in the Carrera holding, or anywhere else in the law of ascertainability, is it written that any one of these functions is more determinative than the others or should be given more consideration than its counterparts.Indeed, the three objectives within the implied requirement of ascertainability must also be balanced against other outside influences and interests of the parties involved.[71] The Seventh Circuit Court of Appeals, in Mullins, held that a court must consider “’the likely difficulties in managing a class action,’ but in doing so it must balance countervailing interests to decide whether a class action ‘is superior to other available methods for fairly and efficiently adjudicating the controversy.’”[72] The court further held that the administrability of the class (an aspect of ascertainability) must be balanced with other pertinent interests, including the effectiveness of the recourse and the sufficiency of class action over other legal avenues.[73] Thus, administrability, the element of ascertainability that the Third Circuit’s approach exclusively expands, is more appropriately one of many factors in the totality of the class action balance. As such, one factor cannot supersede, without legislative indication, all of the other moving parts involved in a multi-faceted class action lawsuit.As the Seventh Circuit Court of Appeals so eloquently stated, “[w]hen courts wrote of th[e] implicit requirement of ‘ascertainability,’ they trained their attention on the adequacy of the class definition itself.”[74] The court explained that “[t]hey were not focused on whether, given an adequate class definition, it would be difficult to identify particular members of the class” as heightened ascertainability so speculatively requires.[75]

A. Traditional Ascertainability Sufficiently Protects Defendants Against Vague Classes

The Seventh Circuit, in Mullins, set forth three common ascertainability complications that heightened ascertainability was designed to remedy.[76] The first of these can be described as vague classes.[77] Vague classes result when the boundaries concerning who can become a class member are not properly drawn. As James W. Moore, of Moore’s Federal Practice, wrote, “[t]here can be no class action if the proposed class is ‘amorphous’ or ‘imprecise.’”[78] To avoid vagueness, class definitions generally need to identify (1) a particular group (2) harmed during a particular time frame (3) in a particular location and (4) in a particular way.[79] Precision is necessary to identify who will receive notice of the class, who will enjoy recovery if the class is successful, and who will be bound by the judgment.[80] Without some sort of protection against vague classes, defendant corporations and manufacturers could be liable to an indefinite number of plaintiffs without being able to sufficiently allocate the cost of their actions. This proposition has been firmly rejected by legislatures and judiciaries.

The traditional approach to ascertainability, namely a clearly defined class referencing objective criteria, accounts for the four particularities required to avoid vague classes without over-protecting class action defendants from group recovery. By “clearly defining a class,” under the traditional approach to ascertainability, one must establish certain bounds in which a consumer must fall. In Mullins, the plaintiffs must have (1) purchased Instaflex; (2) during the prescribed statute of limitations; (3) in Illinois and other certain states; (4) for personal use.[81] If individuals satisfied those parameters they could become a member of the class.[82] If even one of those elements was not present, the individual would not be accepted as a member.[83] Similarly, in Carrera, the district court explained that the plaintiffs (1) must have purchased WeightSmart (2) in the state of Florida and (3) must be able to verify their purchase through receipts or other records from loyalty cards or online purchases.[84] The traditional approach to ascertainability effectively curtailed the possibility of certifying a vague class in both Mullins and in the district court interpretation of Carrera. On the other hand, while a court would most likely avoid any unintentional certification of a vague class by demanding that plaintiffs provide a reliable and administratively feasible apparatus for determining class membership at the pretrial stage, as the Third Circuit’s heightened ascertainability requires, it would do so the cost of rejecting legitimate class suits like the one in Carrera.

B. Traditional Ascertainability Sufficiently Protects Against Classes Based on Subjective Criteria

The second complication that heightened ascertainability purports to avoid is classes based on subjective criteria.[85] The objectivity requirement of traditional ascertainability (i.e. classes referencing objective criteria) disallows the certification of classes that are based on the state of mind of the plaintiff.[86] Plaintiffs can usually avoid this by defining a class in terms of conduct as opposed to a subjective state of mind.[87] The subjective class issue occurs when a group of plaintiffs attempt to find unity in the expectations they had or their personal feelings. A class based on what someone thinks or subjectively expects would be extremely problematic. Not only would the class require the court to address each member’s claim individually to determine legitimacy, but it would be impossible to substantiate whether the claims were meritorious.The traditional ascertainability approach, by definition, accounts for the objectivity necessary to determine a legitimate class, whereas the additions made by heightened ascertainability add little, if anything, to the fold. The traditional approach requires a prima facie “reference of objective criteria” before ascertainability can be established.[88] In Simer v. Rios, the Seventh Circuit, the circuit most fervently combating heightened ascertainability, applied the traditional ascertainability approach and rejected a class certification for a group of people who sought accreditation based on their individual discouraged feelings.[89] The plaintiffs in Simer were a group of individuals who were “discouraged” from applying for an energy conservation grant because of a caveat for that program that first required delinquency.[90] The class definition did not reference objective criteria based on conduct but instead based membership on a subjective state of being that proved far too difficult to ascertain.[91] In Mullins and Carrera, the courts recognized that the plaintiffs were not basing their claims on the individual disappointment of each member in the product that they purchased, but rather on the act of purchasing a product that misrepresented itself—an objectively provable contention.”[92] The heightened ascertainability requirement for a reliable and administratively feasible apparatus for determining class membership, by itself, fails to add any substance to the struggle against subjective class certification.

C. Traditional Ascertainability Sufficiently Protects Against Fail-Safe Classes

Finally, the Seventh Circuit Court of Appeals in Mullins identified fail-safe classes as the third complication commonly arising out of the ascertainability requirement.[93] Fail-safe classes are classes that cannot be defined until the case has been resolved on its merits.[94] Under F.R.C.P. 23, classes are disallowed if they are defined in terms of success on the merits.[95] This is a particular problem because the class member will either win the class action, or, by virtue of losing, become a non-class member, creating a double-edged sword for class action defendants.[96] If the class is certified then the defendant is pressured to settle; but if the class is rejected, then the individual may still have a separable action not barred by claim or issue preclusion.[97]In order to avoid creating a fail-safe class, membership should not depend on the liability of the defendant.[98] Similar to its defense against vague classes, the traditional approach to ascertainability contemplates the problem of fail-safe classes by requiring the class to be clearly defined.[99] When a plaintiff defines a class clearly, it becomes apparent whether the class is bound together by the defendant’s liability. In the case of Sauter v. CVS, the plaintiff tried to certify a class of individuals who had received non-emergency telemarketing calls from CVS even though they did not give consent to the calls.[100] By defining the class in such a manner, the plaintiffs would win the case if they had indeed been called and did not give consent (the two things necessary to win in this case), but would be released from trial if they did not survive the class definition, thus evading claim preclusion by not being bound by an adverse judgement.[101] In Mullins, the class was predicated on the sufficiency of the product’s representations and not on the liability of the defendant.[102] If Direct Digital prevails in Mullins, res judicata will bar class members from re-litigating their claims in a different forum.[103] Traditional ascertainability allowed the court in Sauter to identify a fail-safe class[104] and the court in Mullins to distinguish a properly ascertainable class.[105] Third Circuit heightened ascertainability is unnecessary to protect against fail-safe classes.While the Third Circuit claimed that its heightened approach to ascertainability would promote administrability, practicability, and identifiability of class claims, the additions seem to have little to no effect on the complications facing class ascertainability.[106] The traditional approach to ascertainability along with the explicit requirements of F.R.C.P. 23 sufficiently curtail the common complications facing class ascertainability.

IV. The Sixth Circuit Approach to the Ascertainability Condundrum

Ascertainability in the Sixth Circuit is muddled; no concrete holding has been established concerning the ascertainability requirement implicit in F.R.C.P. 23. The Sixth Circuit Court of Appeals has not explicitly adopted heightened ascertainability, but in Young v. Nationwide Mutual Insurance Company, it adopted the definition from Moore’s Federal Practice that “a class must not only exist, [it] must be susceptible to precise definition.”[107] While the Young decision has been heavily scrutinized,[108] it does suggest that the Sixth Circuit may be open to adopting a heightened approach to ascertainability.[109] In Young, the plaintiffs created a class of insured individuals who were allegedly overcharged for the services they received (i.e. they paid taxes on non-taxable charges).[110] The court explained that

[f]or a class to be sufficiently defined, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria. In some circumstances, a reference to damages or injuries caused by particular wrongful actions taken by the defendants will be sufficiently objective criterion for proper inclusion in a class definition. Similarly, a reference to fixed, geographic boundaries will generally be sufficiently objective for proper inclusion in a class definition.[111]

In its discussion of the class definition, the court in Young withdrew back to traditional ascertainability language and continued later in its opinion to refer to administrability as if it were separate and apart from class definition and ascertainability.[112] While the opinion in Young seems to tender the court’s preference for administrability, it retreats on multiple occasions and explains that the difficulty in reviewing class membership is not dispositive.[113]If the Sixth Circuit Court of Appeals’ opinion in Young was unhelpful in foreshadowing what the circuit may do when faced with an ascertainability conundrum, then the opinions from the district courts within the Sixth Circuit concerning ascertainability have muddied the waters even more. There is little agreement among the Sixth Circuit district courts that have commented on the subject of ascertainability. The Eastern Division of the Northern District of Ohio opined in In re Polyurethane Foam Antitrust Litigation that the Sixth Circuit has not explicitly required ascertainability, but in the same breath recognized the Third Circuit’s two-pronged heightened ascertainability test as the proper test for determining ascertainability.[114] The Western Division of the Northern District of Ohio in Galoski v. Applica Consumer Products required only that the class be clearly defined referencing objective criteria, mirroring the traditional test for ascertainability.[115] Similarly, the Western District of Tennessee in Cole v. City of Memphis required only that a class be clearly defined referencing objective criteria, again, mirroring the traditional test for ascertainability.[116] The Eastern District of Michigan in Barry v. Corrigan blurs heightened ascertainability with the requirements implicit for defining a class set forth in F.R.C.P. 23(c)(1)(B).[117]With such discord in the realm of class ascertainability, it is understandable why the Third and Seventh Circuits have sketched out the boundaries of ascertainability with such vigor in their jurisdictions. Hard and fast rules are the easiest way to set expectations and expose weaknesses in a jurisdiction’s approach to a judicial rule. Certainly, there is no consensus in the Sixth Circuit as to the status of ascertainability. However, if the Sixth Circuit Court of Appeals’ decision in Young is any indication, then the Sixth Circuit, a historically objective circuit, is on its way to adopting a heightened ascertainability approach to class action certification that would undermine the justifications for F.R.C.P. 23(b)(3) consumer class actions.[118]As explained above, the ascertainability requirement serves to eliminate administrative burdens, facilitate the best notice practicable, and protect defendants from expansive judgements.[119] The first objective of the implicit ascertainability requirement—administrability —is unequivocally represented in the heightened ascertainability approach.[120] However, the Sixth Circuit already has the superiority and numerosity requirements of F.R.C.P. 23(a) and (b)(3), which also support the administrability objective without requiring the plaintiff to prove feasibility and provide an apparatus by which to measure the class.[121] The second and third objectives—practicality and identifiability—are also furthered by Third Circuit heightened ascertainability, albeit minimally, by requiring that the plaintiff prove feasibility of the class and provide an apparatus for determining the identity of class members. Regardless of the implicit practicality and identifiability aspects of heightened ascertainability, the Sixth Circuit requires class counsel to prove typicality, commonality, numerosity, traditional ascertainability, and the superiority requirements before certification.[122] Thus, it adds nothing to the practicality nor the identifiability discussions to adopt the Third Circuit’s new requirement. When read together, the current requirements of F.R.C.P. 23 requires that the class be practical in its notification of identified class members.Heightened ascertainability is, if anything, repetitive. While it purports to establish a novel rule by which to streamline the class certification process, it merely restates the objectives implicit in the current reading of F.R.C.P. 23 and the common law of class actions. It is imperative that the Sixth Circuit refrain from the adoption of heightened ascertainability. The adoption of such a rule does not advance protection against vague, subjective, or fail-safe classes, nor does it promote any novel objectives. Adopting heightened ascertainability gives unwarranted priority to judicial administrability of a class and could mean the practical end to consumer regulation of the market.

Conclusion

The theoretical purpose of class action certification and litigation is to assist groups of plaintiffs who are “isolated, scattered, and utter strangers to each other” to procure legal redress, which may be unavailable to them individually.[123] The practical effect of class action litigation is a check on manufacturers and other defendants who cause minimal damage to a multitude of people. Without F.R.C.P. 23 and class action litigation, a large portion of consumer harm would lack a remedy.It is highly unlikely that Congress will abolish consumer class action practice anytime in the foreseeable future. By heightening the ascertainability requirement, however, courts may practically effectuate a similar result. There is a public policy in favor of holding defendants accountable no matter how small or large the harm they cause.[124] Plaintiffs currently face at least seven requirements they must prove before the certification of a class is granted; the additional administrability requirement proposed by the Third Circuit does nothing more than add to the thicket of hurdles for class counsel. The implications of creating another hurdle for class action plaintiffs could mean an immense decline in consumer class action suits and less judicial oversight of manufacturers and corporate defendants.Ascertainability is essential to judicial economy. I do not advocate that ascertainability is unnecessary, as some scholars have done.[125] Rather, I argue that the traditional approach to ascertainability is sufficient to curb the threats presented by unascertainable classes. The Third Circuit’s heightened approach to ascertainability skews the proper balance of interest by placing too much weight on administrability. The Sixth Circuit should repudiate the Third Circuit’s heightened approach to ascertainability and embrace the Seventh Circuit’s traditional approach in order to maintain the balance necessary for equitable class certification determinations.

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[1] J.D. Candidate, 2017, University of Kentucky College of Law; B.A., 2013, Morehead State University. In memory of Edna May Bragg to whom I owe my faith and fortitude.

[2] Geoffrey C. Shaw, Class Ascertainability, 124 Yale L. J. 2354, 2356 (2015) (quoting Harry Kalven, Jr. & Maurice Rosenfield, The Contemporary Function of the Class Suit, 8 U. Chi. L. Rev. 684, 688 (1941).

[3] Carrera v. Bayer Corp., 727 F.3d 300, 308 (3rd Cir. 2013).

[4] See Jason Steed, On “Ascertainability” as a Bar to Class Certification, 23 App. Advoc. 626, 626 (2011); see also Chamberlan v. Ford Motor Co., 402 F.3d 952, 957 (9th Cir. 2005) (explaining the “death knell” nature of class certification).

[5] Steed, supra note 4. See generally Samuel Issacharoff, Myriam Gilles, Andrew J. Pincus & D. Theodore Rave, The Current State of the Consumer Class Action, 11 N.Y.U. J. L. & Bus. 647 (2015) (providing background commentary on modern class action litigation).

[6] 5 James Wm. Moore et al., Moore’s Federal Practice, ¶ 23.21[1] (3d ed. 2016).

[7] Steed, supra note 4.

[8] Shaw, supra note 2, at 2357-58; Steed, supra note 4, at 628. See also, e.g., Mullins v. Direct Digital, L.L.C., 795 F.3d 654, 657 (7th Cir. 2015); Carrera, 727 F.3d at 304; Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 589 n.8 (9th Cir. 2010); Romberio v. Unumprovident Corp., 385 F.App’x. 423 (6th Cir. 2009); In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 30 (2d Cir. 2006); In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 19 n.22 (1st Cir. 2005); Shook v. El Paso Cty., 386 F.3d 963, 972 (10th Cir. 2004); In re A.H. Robins Co., 880 F.2d 709, 728 (4th Cir. 1989); DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970).

[9] See Steed, supra note 4 at 628 (stating that most circuits have acknowledged an ascertainability requirement).But see Shaw, supra note 2, at 2354 (arguing a rejection of the ascertainability requirement).

[10] Steed, supra note 4 at 626.

[11] Moore, supra note 6.

[12] See Mullins, 795 F.3d at 659-60.

[13] Steed, supra note 4, at 627.

[14] Carrera v. Bayer Corp., 727 F.3d 300, 307 (3rd Cir. 2013).

[15] See, e.g., Mullins, 795 F.3d at 663; Shepard Goldfein & James A. Keyte, Heightened Ascertainability In Class Actions: Clash of Two Circuits, 254 N.Y.L.J. available at https://www.skadden.com/sites/default/files/publications/070081527Skadden.pdf.

[16] See Mullins, 795 F.3d at 658.

[17] Id.

[18] Id.

[19] Id. at 660-61.

[20] Id. at 662.

[21] Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012).

[22] Harry Kalven, Jr. & Maurice Rosenfield, The Contemporary Function of the Class Suit, 8 U. Chi. L. Rev. 684, 686 (1941).

[23] See Fed. R. Civ. P. 23.

[24] See Class Action Fairness Act of 2005, Pub. L. No. 109–2, 119 Stat 4; Public Citizen, Unfairness Incorporated: The Corporate Campaign Against Consumer Class Actions (2003).

[25] See Fed. R. Civ. P. 23(a) (known in short as (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy).

[26] See Fed. R. Civ. P.

[27] Steed, supra note 4.

[28] See Fed. R. Civ. P. 23(b)(3) (known, in short, as (5) predominance and (6) superiority).

[29] See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

[30] Id. at 351.

[31] Moore, supra note 6.

[32] Mullins v. Direct Digital, L.L.C., 795 F.3d 654, 659 (7th Cir. 2015).

[33] Carrera v. Bayer Corp., 727 F.3d 300, 305-06 (3rd Cir. 2013).

[34] Steed, supra note 4.

[35] See Simer v. Rios, 661 F.2d 655, 669-71 (7th Cir. 1981) (discussing the issues present in defining and identifying the members of a class).

[36] See, e.g. Mullins, 795 F.3d 654; Carrera, 727 F.3d 300; Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010); Romberio v. Unumprovident Corp., 385 F.App’x. 423 (6th Cir. 2009); In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24 (2nd Cir. 2006); In re PolyMedica Corp. Sec. Litig., 432 F.3d 1 (1st Cir. 2005); Shook v. El Paso Cnty., 386 F.3d 963 (10th Cir. 2004); In re A.H. Robinson Co., Inc., 880 F.2d 709 (4th Cir. 1989); DeBremaecker v. Short, 433 F.2d 733 (5th Cir. 1970).

[37] See Carrera, 727 F.3d at 305 (3rd Cir. 2013).

[38] See Carrera v. Bayer Corp., No. 08-4716, 2011 WL 5878376, at *1 (D.N.J. Nov. 22, 2011).

[39] Id. at *1.

[40] Id. at *9.

[41] Id. at *3.

[42] Id. at *4 (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1272-73 (11th Cir. 2004)).

[43] Id.

[44] Id.

[45] Carrera v. Bayer Corp., 727 F.3d 300, 305 (3rd Cir. 2013).

[46] Id. at 303-04.

[47] Id. at 307.

[48] Id. at 305.

[49] Id. at 307.

[50] Id.

[51] Id.

[52] Id.

[53] Id. at 304.

[54] William B. Rubenstein, Newberg on Class Actions § 3:3 (rev. 6th ed. Supp. 2016).

[55] See Mullins v. Direct Digital, L.L.C., 795 F.3d 654, 658 (7th Cir. 2015).

[56] Mullins v. Direct Digital, LLC, No. 13-CV-1829, 2014 WL 5461903, at *1, *4 (N.D. Ill. Sept. 30, 2014).

[57] Id. at *1.

[58] Id. at *2.

[59] Id.

[60] Mullins, 795 F.3d at 657.

[61] Id. at 662 (citing Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015); see also Shelton v. Bledsoe, 775 F.3d 554, 560 (3d Cir. 2015) (explaining that “defining the class” and “class ascertainability” are distinct concepts).

[62] Mullins, 795 F.3d at 657. See also Byrd, 784 F.3d at 168-69.

[63] See Mullins, 795 F.3d at 658, 672.

[64] Id. at 663-72.

[65] Id. at 662.

[66] Id. at 662.

[67] Id. at 658.

[68] Id.

[69] Mullins, 795 F.3d at 658.

[70] See Carrera v. Bayer Corp., 727 F.3d 300, 305-06 (3d Cir. 2013).

[71] See Mullins, 795 F.3d at 658.

[72] Id. (quoting : Fed. R. Civ. P. 23(b)(3)).

[73] See generally id. at 663-64 (explaining that the superiority requirement is comparative and that courts “must assess efficiency with an eye toward ‘other available methods’”).

[74] Id. at 659.

[75] Id.

[76] Id. at 657.

[77] Id.

[78] Moore, supra note 6 (quoted in Young v. Nationwide Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012)).

[79] 1 McLaughlin on Class Actions § 4:2 (13th ed. 2016 update).

[80] Mullins, 795 F.3d at 660 (citing Kent v. SunAmerica Life Ins. Co., 190 F.R.D. 271, 278 (D. Mass. 2000)).

[81] Id. at 658.

[82] See id.

[83] See id.

[84] See Carrera v. Bayer Corp., No. 08-4716, 2011 WL 5878376, at *2-3 (D.N.J. Nov. 22, 2011).

[85] Mullins, 795 F.3d at 657.

[86] Id. at 660.

[87] William B. Rubenstein, Newberg on Class Actions § 3:5 (5th ed. 2016 update).

[88] Mullins, 795 F.3d at 662 (quoting Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d. Cir. 2015).

[89] Simer v. Rios, 661 F.2d 655, 669-70 (7th Cir. 1981).

[90] Id. at 657-58.

[91] Id. at 668-69, 682.

[92] Mullins, 795 F.3d at 660-61; Carrera v. Bayer Corp., No. 08-4716, 2011 WL 5878376, at *7, (D.N.J. Nov. 22, 2011).

[93] Mullins, 795 F.3d at 657.

[94] See Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012).

[95] Id.

[96] Id.

[97] See id.

[98] Mullins, 795 F.3d at 660 (citing Erin L. Geller, Note, The Fail-Safe Class as an Independent Bar to Class Certification, 81 Fordham L. Rev. 2769, 2808 (2013)).

[99] Id. at 659 (explaining the traditional approach to ascertainability).

[100] Sauter v. CVS Pharmacy, Inc., No. 2:13-CV-846, 2014 WL 1814076, at *1 (S.D. Ohio May 7, 2014).

[101] Id. at *3-4.

[102] Mullins, 795 F.3d at 661.

[103] Id.

[104] Sauter, 2014 WL 1814076, at *9.

[105] Mullins, 795 F.3d at 660-61.

[106] See supra Part III and accompanying notes.

[107] Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012) (quoting : Moore, supra note 6).

[108] See, e.g., Cole v. City of Memphis, 839 F.3d 530, 541 (6th Cir. 2016) (comparing 6th Circuit’s decision in Young, 693 F.3d 532, to the decisions to other circuits).

[109] Young, 693 F.3d at 537-38.

[110] Id. at 535.

[111] Id. at 538-39 (quoting Moore, supra note 6).

[112] See id. at 540.

[113] Id.

[114] In re Polyurethane Foam Antitrust Litig., No. 1:10 MD 2196, 2015 WL 4459636 at *5-7 (N.D. Ohio July 21, 2015).

[115] Galoski v. Applica Consumer Prods., 309 F.R.D. 419, 422 (N.D. Ohio 2015).

[116] Cole v. City of Memphis, No. 2:13-cv-02117-JPM-dkv, 2015 WL 3442277, at *5 (W.D. Tenn. May 28, 2015).

[117] Barry v. Corrigan, 79 F. Supp. 3d 712, 728-33 (E.D. Mich. 2015).

[118] See generally Young, 693 F.3d 532 (describing class certification requirements).

[119] Carrera v. Bayer Corp., 727 F.3d 300, 305-06 (3rd Cir. 2013).

[120] See Mullins v. Direct Digital, L.L.C., 795 F.3d 654, 663-73 (7th Cir. 2015) (conceding that heightened ascertainability addresses administrability).

[121] Fed R. Civ. P. 23(a), (b)(3).

[122] See, e.g., Young, 693 F.3d 532.

[123] Shaw, supra note 2 (quoting Harry Kalven, Jr. & Maurice Rosenfield, The Contemporary Function of the Class Suit, 8 U. Chi. L. Rev. 684, 687-88 (1941)).

[124] See Fed. R. Civ. P. 23.

[125] Shaw, supra note 2, at 2363.

Why Your Company’s Cyber Breach Isn’t Currently a Bad Thing

Article | 105 KY. L. J. ONLINE 1 | November 14, 2016

Devon Paige Cobb[1]

Introduction

“[T]here are only two types of companies: those that have been breached and those that don’t know they have.”[2] Despite the frequency of these hacks, the stigma associated with cybersecurity breaches of business and customer information is a harsh one. That stigma is imposed before the financial hits are measured, the average cost of which can be as much as $25 per exposed record.[3] Target alone reported a net $17 million in breach-related costs as well as $44 million in insurance payments.[4] While those numbers are substantial, these hacks can cost companies even more in intangibles, such as the decline in a company’s reputation,[5] loss of customer goodwill,[6] and liability flowing from either class action lawsuits by customers whose information has been breached or shareholders’ derivative actions.[7]Cyber breaches of consumer information have plagued the private financial and healthcare sectors for years now, but only recently, in the wake of such scandals as Ashley Madison[8] and big business let downs like Target,[9] have these leaks focused society's attention on the public sector.[10] The Securities Exchange Commission (SEC) has been slow to regulate disclosure of cybersecurity breaches for publicly traded companies. Only in 2011 did it publish guidelines that require publicly traded companies to disclose material cyber attacks, threats of loss, and actual losses.[11] And although the SEC met again in 2014 in a roundtable discussion,[12] it still has failed to mandate a specific timeline for publicly traded companies to follow in making their breach disclosures to the public.[13]So can a cyber breach ever be a good thing for the company? Because there have not been specific regulations from the SEC, companies are free to take their time and consider only their own interests in making breach disclosures to the public; companies may even spin the breach as immaterial to avoid disclosure completely.[14] Without explicit SEC regulation of the timeline for disclosure, companies will inevitably waver on the time they take to make disclosures, creating ambiguity in industry standards and uncertainty in the marketplace following a breach. Furthermore, market distortions — the types that the SEC is most focused on preventing[15]— are likely to result from undisclosed information from data breaches. This Note argues that the SEC should mandate a specific timeline for requiring companies to disclose a cyber breach to maintain its objective of ensuring freely disseminated information, maintaining market integrity, and protecting investors.

I. The Setting: How Investors’ Interests Are Taking a Back Seat

Consumers, companies, and investors have competing interests in regards to a data breach. Unfortunately, investors’ interests are ultimately ignored. Consumers, however, need to be notified of breaches so that they can take remedial and protective post-breach measures to safeguard their information, like cancelling their credit cards. These interests are currently being protected by the Federal Trade Commission (FTC), whose mission is to protect consumers from unfair or deceptive business practices.[16] The Third Circuit recently held that the FTC may bring a claim that a company’s allegedly inadequate data security practices constitute “unfair” business practices in violation of Section 5 of the Federal Trade Commission Act.[17] Furthermore, many states have recognized the need for adequate consumer protection by enacting consumer breach notification disclosure statutes, but consumers are afforded this protection in only three-fourths of states.[18]Companies often perceive that keeping a hack quiet is in their best interest. This allows the company to “save face”[19] and prevent indirect costs of “business lost”[20] from wary consumers, while, in the interim, trying to discover precisely what information was hacked and why. But companies also limit disclosures to avoid “provid[ing] a roadmap for hackers as to where they are vulnerable.”[21] For these same reasons, a company might fear that making a breach public would cause potential investors to shy away from the company.[22] Add to this list of concerns the looming fear of class action lawsuits for consumers who were harmed by the breach,[23] and it is easy to see why companies’ interests are best served when they have all the time in the world (or at least as long as they want) to disclose a breach.These concerns leave investors’ interest in being notified of a data breach ignored under current SEC regulations. Investors care about data breaches being withheld because of the impact it could have on their investment’s stock price. Announcing publicly that a database of consumer information has been hacked would intuitively cause the breached company’s stock price to decrease for a number of reasons: loss of faith in the company’s ability to safeguard sensitive materials, impending liability costs to remedy such breach, including implementing new safeguards to assure breaches become less likely to occur, and costs of future lawsuits, to name just a few. The current regulations, or lack thereof, allow companies to be guided solely by industry standards when it comes to what and when to disclose post-breach.[24]However, announcements of a data breach need not assuredly signal impending doom for a company’s stock price.[25] A few companies have successfully navigated such announcements.[26] Target and Home Depot both faced security breaches but chose to handle the situation differently.[27] Target delayed notifying customers of the breach and its stock dropped nearly 20% while Home Depot’s prompt notification to their larger affected consumer base was viewed as reassuring to the public and did not adversely affect the company’s stock price.[28]These types of positive consumer responses to a breach could in turn be just the kind of uptick that investors would want to know about most. Patrick Malcolm, a digital forensics and security expert commenting on the Ashley Madison leaks, noted the way the breach’s publicity could work in the company’s favor, explaining how a consumer told Malcolm that he was joining Ashley Madison “because it was more secure now.”[29] However, Malcolm explained, “there’s no evidence the company has actually changed its protocols.”[30] On the other hand, notifying the public that a company has been hacked could signal that the company has not been responsible with consumer information they pledged to keep safe.[31] Several companies have lost CEOs following breaches that uncovered corporate irresponsibility, poor business practices, disconcerting management, and the company’s inability to protect consumer data.[32] Regardless of whether the breach indicates a change in consumer confidence in the company or a reflection of poor management, the overall perception of a company post-breach can affect how investors view their investments and thus should fall within the SEC’s realm of regulations.The SEC does play a role, albeit a mildly passive one thus far, in regulating data breaches. The SEC only began specifically addressing cyber breaches in 2011, when it published guidance on disclosure obligations. Unfortunately these guidelines gave no timeline for making disclosures and only mandated that disclosures are required for “material” information.[33] In 2014, the SEC held a roundtable where industry leaders considered making more regulations on disclosures.[34] Political leaders, such as Senator John D. Rockefeller, in his role as Chairman of the Committee on Commerce, are even “urging” the SEC to take more extensive action, noting concerns “about inconsistencies in disclosures, investor confusion, and the fact that many corporate leaders [do] not fully recognize the relationship between their companies’ cybersecurity measures and financial success.”[35] SEC Commissioner Luis A. Aguilar gave a speech at the New York Stock Exchange urging companies to take more steps and encouraging “more public reporting of cyberattacks.”[36] But the SEC has not taken any steps since the roundtable, simply continuing to encourage companies to follow the 2011 guidance, leaving investor interests and protections back-seated when it comes to breach notification.

II. The Problem: How Companies Can Work Around the Current Regulations

The SEC’s purpose is to “protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation,”[37] resting on the foundation that “only through the steady flow of timely, comprehensive, and accurate information can people make sound investment decisions.”[38] Thus, the SEC is charged with regulating and monitoring disclosures made by publicly traded companies to ensure investors have equal access to information. This is done by not only imposing a duty on companies to disclose “material” events, but also by imposing strict timelines under which the disclosures must be made. Under the SEC’s definition, “material”[39] means any information that has a substantial likelihood of being considered important to a reasonable investor when making an investment decision.[40] Because a breach could be of concern to investors, these disclosure mandates would assumedly include notifications when a publicly traded company has been hacked.[41]Although the materiality test dictates an objective standard, companies still have room to deem a data breach “immaterial.”[42] If a company can twist the breach as immaterial, it can completely avoid disclosure, meaning that investors would not be notified even though the breach could influence their investment decisions.[43] SEC guidance has cautioned “a cyber-attack could be material if it causes a company to significantly increase what it spends to defend its systems or when intellectual property is stolen.”[44] This allows management to usurp the SEC’s role of deciding what investors need to know. If the breach results in only “minor intrusions” of consumer data, it likely does not need to be disclosed, whereas confirmed breaches of determinable consumer information definitely need to be disclosed.[45] For everything in between these two categories, management decides if the breach is important enough to warrant disclosing it to investors under the circumstances.[46]Because certain circumstances already require public disclosure, the SEC could address these concerns by utilizing current provisions, including rules 10b-5[47] and 14a-9,[48] which regulate fraud in connection with the purchase and sale of securities and fraud in the solicitation of proxies. Rule 10b-5 prohibits the use of any manipulative or deceptive device in the buying and selling of securities, requiring disclosure of material information or abstention from trading.[49] This includes an obligation to disclose private information when necessary under the circumstances to prevent publicly known information from being misleading by the omission.[50]Rule 10b-5 could potentially be applicable when a company has been the victim of a cyber-attack and serve to safeguard the interest of investors, but only for instances in which securities, such as the company’s stock, are being sold or purchased.>[51] Thus, this regulation does not always mandate a disclosure or require a trader to abstain from the market to ensure that the integrity of the marketplace is maintained if no securities are being exchanged. Under rule 10b-5, as long as the company itself is not buying or selling securities while withholding information regarding a data breach, no duty arises to disclose such a breach to the general public (i.e. investors).[52] Instead, the only duty the company has is to keep their insiders from trading in the market.[53]Even though companies do not have a duty to disclose a breach under rule 10b-5, they could still be required to make these types of disclosures in their annual 10-K forms.[54] However, these reports require companies to only report “the cybersecurity risks that could affect the business or its registrants materially;”[55] they do not require the company to report actual incidents or breaches. The SEC’s 2011 guidance encouraged companies to determine if “the costs or other consequences associated with one or more incidents or the risks of potential incidents [of cyber breaches] represent a material event, trend, or uncertainty that is reasonably likely to have a material effect on the registrant’s results of operations, liquidity, or financial condition or would cause reported financial information not to be necessarily indicative of future operating results or financial condition,” and report this in the Management & Discussion Analysis (MD&A) section of the company’s annual reports.[56] The decision as to whether or not to disclose is complicated by a timing issue: even if companies do disclose a breach in their annual reports, investors are only deemed to have been notified at the end of the year when those reports are filed.[57] Thus, the breach’s impact could affect investment decisions to buy, sell, or trade far sooner than when the year-end report filings roll around.In addition to annual and quarterly reports, public companies must report “certain material corporate events” in an 8-K report to announce major happenings of which shareholders should be aware.[58] Companies are given four days to file these disclosures.[59] Although cyber breaches are not specifically listed as items to be reported on an 8-K, registrants can use section 8 of the form to “report events that are not specifically called for by Form 8-K that the registrant considers to be of importance to security holders.”[60] Guidance has been given that:

… once the facts are gathered, a special filing may be warranted. . . . If the event or incident is a significant one or if it is one that a reasonable investor would expect to hear about outside the cycle of the normal disclosure of risk, it is prudent to do a special filing.[61]

This form alone, however, does not require a cyber breach disclosure to be made, and even if companies choose to disclose under this rule, there is once again an opportunity for work-around regarding the timing of the disclosure. Although the regulations governing 8-K filings mandate a four-day deadline for certain events falling under Sections 1-6 and 9 (covering standard business occurrences), filings regarding cyber breaches, which fall under Section 8’s “other events,” are not given this same four-day deadline, or even any specific deadline.[62]Due to the SEC’s slow response in regulating disclosure, the only real pressure companies feel is to ensure they stay at least somewhat within the shadows of others in their industry.[63] This is currently the best and only standard against which a company can be judged.[64] Choosing to file an 8-K could be in the company’s best interest, especially if that is how others in the industry are treating the incident. However, because these measures are not strict regulations, they allow companies to interpret and set their own standards. This can lead to unequal dissemination of information and inefficient markets, as investors in A corporation could be notified of a breach more quickly than investors in B corporation. Although industry standards could be used to set strict demands for companies, the current standards are so lax as to allow companies to consider their own interests over that of their investors.Piecing together all of this information shows that avoiding breach disclosures may be easier for companies than investors would like. If the SEC set disclosure notification timelines for publicly traded companies, it would communicate to companies that data breach disclosures are not only material and required, but would also remove the uncertainty management faces in determining a breach’s materiality.

III. The Solution: Regulating the Regulators

The SEC should mandate stricter data breach notification requirements and set a rigid timeline to give companies direction when handling a data breach. Tighter regulations will encourage companies to create response plans so that they can act quickly in the face of a breach. Regulations will also incentivize companies to put in place adequate safeguards, such as technological safety measures to protect consumer data, helping prevent breaches in the first place. This, in turn, benefits investors, as a breach would be less likely to have a detrimental effect if handled well.[65] A definite timeline will also move publicly traded companies to uniform and clear guidelines, clarifying the current vague industry standards set by the companies that have already been breached. These standards could also help set guidelines for small and non-public companies in the future.The SEC should not set a flexible rule, such as “companies should disclose data breaches timely,”[66] because this type of rule would not solve the disclosure problem. This standard is no clearer than the current ambiguous guidance and would leave companies uncertain about how such a vague standard would be interpreted. Instead, it would only facilitate the current problems caused by industry standards, which allow companies to set their own disclosure timeframes based on what they believe is the most effective response time, focusing more on their own primary interests rather than their investors’. This type of standard would also allow for workarounds, opening the door to fraudulent practices and delay tactics for each company’s specific situation, avoiding the primary objectives of the SEC — to protect investors by keeping them equally informed and ensuring that they “are provided with material information in order to make informed investment decisions”[67] and to “maintain fair, orderly, and efficient markets.”[68] While a company may have unique circumstances that require a delayed notification timeline, the investor’s interest remains consistent in needing to be timely informed of incidents affecting their investments.The SEC’s data breach notification regulations, enacted primarily to serve investors, would also provide an ancillary benefit of protecting consumers in states that do not afford them any protection through consumer notification laws.[69] Roughly one-fourth of states do not have consumer notification laws on their books.[70] Kentucky, for example, requires only that disclosures be made “in the most expedient time possible and without unreasonable delay.”[71] This type of standard sets no more of a specific deadline than mandating no timeframe at all, but at least requires that companies must eventually disclose the breach to consumers. Even Delaware, the capital of business governance,[72] offers no more of a specific timeline than “the most expedient time possible and without unreasonable delay.”[73]In deciding precisely how long to make the notification timeline, the SEC could look to state consumer notification laws.[74] Ohio, for example, says “in the most expedient time possible but not later than forty-five days.”[75] Florida law is even stricter, saying “as expeditiously as practicable, but no later than 30 days after.”[76] By explicitly regulating notification deadlines, the SEC would integrate consumer and investor interests in building market integrity and in devising a comprehensive system that considers the competing interests of the marketplace as a whole, as SEC Commissioner Aguilar urged back in 2014.[77]Alternatively, because investor concerns can vary widely based on industry, the SEC could consider setting a sliding scale timeline across different industries. For example, investors could need to know right away that a financial services company like American Express has been hacked of consumer credit card information. Consumers may place greater trust in a financial company to protect their sensitive information, and profitability would likely decline as a result of class action litigation costs and loss of customer loyalty. Investors would thus need to know of a breach almost immediately to anticipate how these market effects would impact their investments. Contrast this with a company that has been breached of consumer loyalty information, like Kroger, whose “Kroger Plus Card” records customer’s shopping trends but not financial information.[78] In this case, consumers do not have high expectations for maintaining the integrity of this information nor a cause of action when these types of non-sensitive reports are hacked.[79] Because certain industries are targeted more frequently and seriously, and the consequences of a breach are more detrimental to the health of the company, the SEC could, in considering these fluctuating concerns, create a sliding scale for data breach notifications for different industries.

Conclusion

Data breaches are becoming more frequent and more expensive, and they can have detrimental consequences for companies.[80] Consumers need to know as quickly as possible that an unauthorized access of their sensitive financial information has occurred in order to take proper safeguarding measures. But because the current norms are set by the industry, management is free to allow company-related concerns, such as the potential damage to its reputation and the subsequent effect on stock price, to guide its decision on when to notify the public of a data breach. This leaves investors’ interests unaddressed. A data breach can have a multitude of investment-related consequences, such as fluctuating stock prices, an increase in the company’s liabilities from class action law suits or increased cyber insurance costs, or a downturn in the company’s overall health and public perception.The current state of data breach notification regulations for publicly traded companies allow companies to benefit from not having to disclose a breach to their investors. Without a specific timeline mandating when companies must disclose a breach, companies are free to follow either their state’s notification law, assuming there is one, which even then may be just as ambiguous as the current SEC guidelines, or the industry standards set by similar companies that have responded to data breaches. And if the company is in an industry that has not had many breaches, it would be free to set its own standard. None of these standards provide uniform or efficient markets, strengthen investor security, or ensure equally disseminated information, all of which the SEC is most concerned with promoting.[81] Because the SEC’s utmost objective is that of protecting investors, the regulatory body should set a specific and strict timeline under which companies are required to abide by after a data breach.

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[1] J.D. Candidate 2017. The author would like to specially thank Lisa E. Underwood, Andrew K. Woods, Rutheford B. Campbell, Jr., and Gardner Bell for their help in the brainstorming process and mentoring of this Note.

[2] Elena Kvochko & Rajiv Pant, Why Data Breaches Don’t Hurt Stock Prices, Harv. Bus. Rev. (Mar. 31, 2015), https://hbr.org/2015/03/why-data-breaches-dont-hurt-stock-prices.

[3] Nicole Perlroth, Ashley Madison Chief Steps Down After Data Breach, N.Y. Times (Aug. 28, 2015), http://www.nytimes.com/2015/08/29/technology/ashley-madison-ceo-steps-down-after-data-hack.html?_r=0 (quoting Larry Ponemon, founder of the Ponemon Institute, whose firm found that “the cost of mega-breaches now averages $23 to $25 per exposed record, which includes the costs of lawsuits.”).

[4] Andria Cheng, Two Months After Damaging Data Breach, Target Stock Has its Best Day in 5 Years, Market Watch (Feb 26, 2014, 2:11 PM), http://blogs.marketwatch.com/behindthestorefront/2014/02/26/two-months-after-damaging-data-breach-target-stock-has-its-best-day-in-5-years.

[5] CF Disclosure Guidance: Topic No. 2, Cybersecurity, U.S. SEC. & Exch. Comm’n (Oct. 13, 2011) [hereinafter SEC Disclosure Guidance], https://www.sec.gov/divisions/corpfin/guidance/cfguidance-topic2.htm.

[6] Andrew Ackerman, U.S. Chamber Warns Cyberattack Disclosures Could Hurt Corporate Profits, Wall Street J. (Oct. 29, 2014, 3:00 PM), http://www.wsj.com/articles/u-s-chamber-warns-cyberattack-discosures-could-hurt-corporate-profits-1414609209 (saying companies should disclose attacks to give customers a heads up because it’s the right thing to do in order for customers to protect themselves, even if no material adverse impact on the company itself results).

[7] Cory Bennett, SEC Weighs Cybersecurity Disclosure Rules, The Hill (Jan. 14, 2015, 6:00 AM), http://thehill.com/policy/cybersecurity/229431-sec-weighs-cybersecurity-disclosure-rules.

[8] See generally Robert Hackett, What to Know About the Ashley Madison Hack, Fortune (Aug. 26, 2015, 7:24 AM), http://fortune.com/2015/08/26/ashley-madison-hack.

[9] See generally Cheng, supra note 4.

[10] Nate Lord, The History of Data Breaches, Digital Guardian (Oct. 6, 2016), https://digitalguardian.com/blog/history-data-breaches.

[11] SEC Disclosure Guidance, supra note 5, at n. 3 (“Information is considered material if there is a substantial likelihood that a reasonable investor would consider it important in making an investment decision or if the information would significantly alter the total mix of information made available”); See also Dave Michaels, Hacked Companies Face SEC Scrutiny Over SEC Disclosure, Bloomberg (July 7, 2014, 11:28 AM), http://www.bloomberg.com/news/articles/2014-07-02/hacked-companies-face-sec-scrutiny-over-disclosure (“In guidance issued three years ago, the SEC said a cyber-attack could be material if it causes a company to significantly increase what it spends to defend its systems or when intellectual property is stolen. . . . Materiality is very open to interpretation[.]”).

[12] See Cybersecurity Roundtable, U.S. Sec. & Exch. Comm’n (Mar. 26, 2014), http://www.sec.gov/spotlight/cybersecurity-roundtable.shtml.

[13] Id.; See SEC Disclosure Guidance, supra note 5; See also Rick M. Robinson, Stock Price May Not Tell the Whole Story About Security Breaches, Security Intelligence (Aug. 13, 2015), https://securityintelligence.com/stock-price-may-not-tell-the-whole-story-about-security-breaches (“A further complication for stockholders and their advisers is that reporting of breaches is often delayed, and existing SEC regulation leaves leeway for public companies as to when to disclose cyber incidents.”).

[14]See generally Robinson, supra note 13 (“A company may be able to time the announcement so that it is followed swiftly by corrective action.”).

[15] See What We Do, U.S. Sec. & Exch. Comm’n, https://www.sec.gov/about/whatwedo.shtml (last modified June 10, 2013) (“The mission of the U.S. Securities and Exchange Commission is to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.”).

[16] See generally, About the FTC, U.S. Fed. Trade Comm’n, https://www.ftc.gov/about-ftc (last visited Oct. 11, 2016) (describing mission as “[t]o prevent business practices that are anticompetitive or deceptive or unfair to consumers”).

[17] See FTC v. Wyndham Worldwide Corp., 799 F.3d 236 (3rd Cir. 2015); See also Michael S. Dicke and Catherine Kevane, Return of the Cyborg—FTC and SEC Oversight of Cybersecurity Ramps Up, Mondaq (Sept. 21, 2015), http://www.mondaq.com/unitedstates/x/428214/Securities/Return+of+the+CyborgFTC+and+SEC+Oversight+of+Cybersecurity+Ramps+Up.

[18] See Summary of U.S. State Data Breach Notification Statutes, Davis Wright Tremaine, LLP, http://www.dwt.com/statedatabreachstatutes (last visited Oct. 11, 2016).

[19] See Robinson, supra note 13 (“Public news of a data breach can generate negative publicity, but a company may be able to time the announcement so that it is followed swiftly by corrective action.”).

[20] Bill Rigby, Cost of Data Breaches Increasing to Average of $3.8 Million, Study Says, Reuters, (May 27, 2015, 6:03 AM), http://www.reuters.com/article/2015/05/27/us-cybersecurity-ibm-idUSKBN0OC0ZE20150527.

[21] See Amy Terry Sheehan, Meeting Expectations for SEC Disclosure of Cybersecurity Risks and Incidents, Cybersecurity L. Rep., Aug. 12, 2015, at 1. http://www.davispolk.com/sites/default/files/agesser.Cybersecurity.Law_.Report.aug15.pdf.

[22] See Kvochko & Pant, supra note 2.

[23] Class action liability can flow from breach of contract liability. For example, after the Ashley Madison breach many users of the company’s service are suing for breach of contract because the company charged customers $19 to delete their actions without actually deleting the accounts. Perlroth, supra note 3.

[24] See infra, Part II; See also Ben Dipietro, The Morning Risk Report: Cybersecurity Disclosures Are Risky Business, Wall St. J.: Risk & Compliance J. (June 8, 2015, 7:25 AM), http://blogs.wsj.com/riskandcompliance/2015/06/08/the-morning-risk-report-cybersecurity-disclosures-are-risky-business-newsletter-draft (“[C]ompanies that have had breaches are in some respects setting the bar for companies that have not, as far as how to approach what to disclose. Best practices for disclosure are based on industry. . . .”).

[25] Because nearly all companies have been or are eventually breached these days, one source posits that shareholders hardly flinch at the news of data breaches anymore. See Kvochko & Pant, supra note 2 (saying that “[i]ndustry analysts have inferred that shareholders are numb to news of data breaches.”).

[26] See Sean Mason, Impact on Company Stock Following Data Breaches, InfoSec Insights (July 21, 2014), http://seanmason.com/2014/07/21/impact-on-company-stock-following-data-breaches; See also Sean Mason, Impact on Stock Following a Data Breach – Feb 2015 Edition, InfoSec Insights (Feb. 26, 2015), http://seanmason.com/2015/02/26/impact-on-stock-following-a-data-breach-feb-2015 (updating research). To see how many “incidents” versus actual breaches occur, see Verizon, 2015 Data Breach Investigations Report 3 (2015), https://www.arxan.com/wp-content/uploads/2015/05/rp_data-breach-investigation-report-2015_en_xg.pdf.

[27] Nathan Layne, In Wake of Target, Home Depot Tight with Info in Breach Response, Reuters (Sept. 8, 2014 1:28 PM), http://www.reuters.com/article/us-home-depot-dataprotection-disclosure-idUSKBN0H31UC20140908.

[28] See Catey Hill, Home Depot’s Data Breach Is Worse Than Target’s, So Where’s the Outrage? MarketWatch (Sept. 25, 2014 11:28 AM), http://www.marketwatch.com/story/yawn-who-cares-about-home-depots-data-breach-2014-09-24; Customer Data Breach Hits CVS Health Photo Site, Investopedia (July 21, 2015, 1:45 PM), http://www.investopedia.com/stock-analysis/072115/customer-data-breach-hits-cvs-health-photo-site-cvs-cost-hd-tgt-wmt.aspx (explaining that “Target is still recovering from the loss of customer trust that resulted from that breach, but much of the backlash was the result of how it had handled the affair, delaying the notification of customers that a breach had occurred. Companies seemed to have learned from that experience. Home Depot had more customers affected by a hack attack that occurred last year, but it notified consumers right away”).

[29]Paola Loriggio, Ashley Madison Hack Fails to Spur Cybersecurity Overhaul, CBC News (Dec. 25, 2015, 5:00 AM), http://www.cbc.ca/news/business/ashleymadison-hack-web-security-1.3380372 (Malcolm went on to say that “[m]aybe they’ve tightened up a few practices, but again, this is the kind of thing that receives attention only when it’s a screaming baby. After the baby’s not making any noise, everybody goes back to what they were doing.”).

[30] Id.

[31] See generally Data Breach FAQ, Target, https://corporate.target.com/about/shopping-experience/payment-card-issue-faq (last visited Sept. 27, 2016) (stating that Target is “sorry” for the breach).

[32] Perlroth, supra note 3 (reporting that Ashley Madison’s CEO stepped down from his position after the company’s hack, just as Sony Pictures Entertainment’s co-chairwoman and the CEO of Target stepped down after similar network breaches) (“Those ousters have made security a priority among executives. According to a survey . . . which tracks data breaches, only 13 percent of senior management said their concern about a data breach was extremely high before the breach at Target. That jumped to 55 percent after the incident . . . . [The founder of company that tracks data breaches stated,] ‘[t]he board is more concerned now than it has ever been with preserving the reputation of a company after a data breach. If the C.E.O. has to leave the company as a result, that’s the cost of doing business.’”).

[33] SEC Disclosure Guidance, supra note 5.

[34] See Cybersecurity Roundtable, supra note 12.

[35] Craig Calle, Disclosing the SEC’s Cybersecurity Disclosure Guidance, Source Callé (Aug. 10, 2015), http://sourcecalle.com/blog/2015/8/10/disclosing-the-secs-cybersecurity-disclosure-requirements.

[36] See Michaels, supra note 11; Luis Aguilar, Commissioner, Sec. & Exch. Comm’n, Board of Directors, Corporate Governance and Cyber-Risks: Sharpening the Focus (June 10, 2014), https://www.sec.gov/News/Speech/Detail/Speech/1370542057946.

[37] See What We Do, supra note 15.

[38] Id.

[39] “Material” is defined by the SEC in two primary cases: Basic Inc. v. Levinson, 485 U.S. 224, 231-32 (1988) and TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976).

[40] SEC Disclosure Guidance, supra note 5, at n. 3 (This also includes instances where “the information would significantly alter the total mix of information made available.”).

[41] See supra Part I.

[42] Michaels, supra note 11 (statement of Thomas Sporkin, a former SEC enforcement lawyer) (“Materiality is very open to interpretation.”).

[43] See Joel Schectman, When to Disclose a Data Breach: How About Never?, Wall Street J.: Risk and Compliance Report (Mar. 27, 2014 12:41 PM), http://blogs.wsj.com/riskandcompliance/2014/03/27/when-to-disclose-a-data-breach-how-about-never/ (describing different companies’ response to similar hacks).

[44] Michaels, supra note 11.

[45] See Sheehan, supra note 21, at 3.

[46] Id.

[47] See Securities Exchange Act of 1934, 17 C.F.R. § 240.10b-5 (2016).

[48] See id. § 240.14a-9.

[49] 17 C.F.R. § 240.10b-5. The scope of this note is too limited to warrant a discussion of fraud in the solicitation of proxy statements.

[50] See id.

[51] The definition of a security, as given by the Howey test, involves only “investment contracts” in which money is invested in a common enterprise with the expectation of profits derived solely from the efforts of a third party promoter. See SEC v. W.J. Howey Co., 328 U.S. 293, 298-299 (1946).

[52] See Chiarella v. United States, 445 U.S. 222, 234 (1980); Dirks v. SEC, 463 U.S. 646, 655 (1983); United States v. O’Hagan, 521 U.S. 642, 678 (1997).

[53] 17 C.F.R. 240 §§ 240.10(b), 10b-5 (describing antifraud provisions of the federal securities laws, which apply to statements and omissions both inside and outside of Commission filings).

[54] See Fast Answers for Form 10-K U.S. Sec. & Exchange Comm’n, https://www.sec.gov/answers/form10k.htm (last modified June 26, 2009).

[55] Dipietro, supra note 24 (emphasis added). See Kobi Kastiel, What’s New in 2015: Cybersecurity, Financial Reporting and Disclosure Challenges, Harv. L. Sch. F. on Corp. Governance and Fin, Reg. (Feb. 18, 2015), http://corpgov.law.harvard.edu/2015/02/18/whats-new-in-2015-cybersecurity-financial-reporting-and-disclosure-challenges.

[56] Kastiel, supra note 55.

[57] See generally Researching Public Companies Through EDGAR: A Guide for Investors U.S. Sec. & Exchange Comm’n, (July 18, 2007), https://www.sec.gov/investor/pubs/edgarguide.htm (describing information contained in the annual 10-K filing).

[58] Fast Answers for Form 8-K, supra note 54.

[59] Form 8-K, U.S. Sec. & Exchange Comm’n, https://www.sec.gov/about/forms/form8-k.pdf, §B(1).

[60] See Fast Answers for 8-K, supra note 54 at Item 8.01.

[61] Sheehan, supra note 21. Information given in the SEC’s disclosure guidance is “intended to assist registrants in preparing disclosure required in registration statements” but this does not limit registrants; instead, they should also consider “whether it is necessary to file reports on . . . Form 8-K to disclose the costs and other consequences of material cyber incidents.” SEC Disclosure Guidance, supra note 5, at n. 2.

[62] See Fast Answers for 8-K, supra note 54. See also Form 8-K, supra note 59 at §B(1), (“When considering current reporting on this form, particularly of other events of material importance pursuant to Item 7.01 (Regulation FD Disclosure) and Item 8.01 (Other Events), registrants should have due regard for the accuracy, completeness and currency of the information in registration statements filed under the Securities Act which incorporate by reference information in reports filed pursuant to the Exchange Act, including reports on this form.”).

[63] See Sheehan, supra note 21.

[64] See Dipietro, supra note 24 (quoting Jay Knight, a former SEC staffer and head of his law firm’s capital markets practice group).

[65] See generally Customer Data Breach Hits CVS Health Photo Site, Investopedia (July 21, 2015, 1:45 PM), http://www.investopedia.com/stock-analysis/072115/customer-data-breach-hits-cvs-health-photo-site-cvs-cost-hd-tgt-wmt.aspx (explaining how stores like Wal-Mart, CVS, and Costco have been upfront with their customers about breaches and how this honesty prevents a meltdown in consumer trust and protects investors).

[66] Language such as this can be found in state consumer notification laws. For example, Oregon (Or. Rev. Stat. Ann. § 646A.604(1)(a) (West, LEXIS through 2016 Sess.)) and South Carolina (S.C. Code Ann. § 39-1-90(a) (LEXIS through 2016 Sess.)) provide for the most expedient time possible and without unreasonable delay. Many states, including Pennsylvania (73 Pa. Cons. Stat. and Cons. Ann. § 2303(a) (West, Westlaw through 2016 Sess.)), Mississippi (Miss. Code Ann. § 75-24-29(3) (West, Westlaw through 2016 Sess.), and Missouri (Mo. Rev. Stat. § 407.1500(2)(1)(a)(LEXIS through 2016 Sess.)) say only “without unreasonable delay.” For more state laws, see Summary of U.S. State Data Breach Notification Statutes, supra note 18.

[67] Calle, supra note 35.

[68]What We Do, supra note 15.

[69] See Summary of U.S. State Data Breach Notification Statutes, supra note 18.

[70] See id.

[71] Ky. Rev. Stat. Ann. § 365.732 (Lexis Nexis, LEXIS through 2016 Sess.).

[72] See Why Incorporate in Delaware or Nevada?, BizFilings, http://www.bizfilings.com/learn/incorporate-delaware-nevada.aspx (Sept. 23, 2016).

[73]Del. Code Ann. tit. 6, § 12B-102(a) (LEXIS through 80 Del. Laws ch 399).

[74] See generally Summary of U.S. State Data Breach Notification Statutes, supra note 18 (showing a map of the United States and giving the online user the ability to click on each state and see their particular data breach notification statutes).

[75] Ohio Rev. Code Ann. § 1349.19(B)(2) (LexisNexis, LEXIS through file 123 (HB 483)).

[76] Fla. Stat. Ann. § 501.171(3)(a) (West, Westlaw through 2016 second regular sess.). Of the other states that have consumer notification laws, only these additional states have rigid timelines: Washington (Wash. Rev. Code Ann. § 19.255.010(16) (LexisNexis, LEXIS through 2016 1st Special Sess.) and Vermont (Vt. Stat. Ann. tit. 9, § 2435(b)(1) (LEXIS through 2015 adjourned sess. (2016))) mandate disclosure be made in the “most expedient time possible and without unreasonable delay,” no more than 45 days; Wisconsin (Wis. Stat. Ann. § 134.98(3)(a) (West, LEXIS through Acts of the 2015-2016 legislative sess.) mandates disclosures to consumers be made “within a reasonable time not greater than 45 days.”

[77] See Michaels, supra note 11 (urging firms to increase public reporting and weigh impact on consumers).

[78] Mike Lennon, Kroger Notifies Customers of Data Breach Stemming from Third-Party Email Vendor, Security Week (Apr. 1, 2011), http://www.securityweek.com/kroger-notifies-customers-data-breach-stemming-third-party-email-vendor; see Hayley Peterson & Ashley Lutz, Why Kroger is America’s Most Underrated Grocery Store, Business Insider (Mar. 6, 2015, 10:54 AM), http://www.businessinsider.com/why-people-love-kroger-2015-3 (“Nine out of 10 purchases at Kroger are made with the chain’s popular ‘Kroger Plus Card,’” [which makes] customers eligible for discounts, including fuel savings [and] gives Kroger unprecedented access into the behavior of its customers, and allows it to tailor promotions to individual shoppers.”).

[79] See generally Verizon, supra note 26 at page 3 (noting that the top three industries targeted and affected by security incidents are public, information, and financial services).

[80] Rigby, supra note 20.

[81] See What We Do, supra note 15 (“The mission of the U.S. Securities and Exchange Commission is to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.”).

Meriting Consolidation: Why Criminal Pattern Jury Instructions Should Consolidate Federal Bribery Statutes

Article | 104 KY. L. J. ONLINE 75 | April 14, 2016

Kierston Eastham Rosen1

Introduction

Bribery in the federal system is notorious for its incoherence.2 Multiple bribery statutes exist with very similar elements, and a defendant can be prosecuted under any and all of these statutes.3 Because of this, the federal crime of bribery continues to confuse and perplex even the most seasoned attorneys.4 While confusion among attorneys helps illustrate the problem with federal bribery, attorneys are not the main focus of pattern jury instructions. Pattern jury instructions serve to educate lay jurors during federal trials, instructing them as to both the law and its application in a given case. It is imperative that these instructions are as clear and concise as possible, and currently, pattern instructions do not meet this standard. Therefore, federal bribery law and its corresponding pattern instructions need to be clarified.Instead of using a separate instruction for each bribery statute, these similar instructions should be consolidated into one general “Bribery” instruction, analogous to the United States Sentencing Commission’s Federal Sentencing Guidelines’ approach of placing related bribery crimes within the same section.5 This process could easily be duplicated, and should be repeated within each United States Circuit Court of Appeals’ Criminal Pattern Jury Instructions. The instruction would include the common elements from these bribery statutes – which are largely the same6 – and could be modified as necessary through Use Notes, adding or deleting an element when necessary. The existing bribery instructions and statutes are already largely cross-referencing one another, making it impractical to separate them statute-by-statute.7Section I provides background information pertaining to the development of federal bribery law, and its connection to pattern jury instructions and the United States Sentencing Guidelines. Section II details the main federal bribery statute, 18 U.S.C. § 201, which reaches federal public officials and continues to be the foundation for all other federal bribery statutes. Section III examines the Hobbs Act, 18 U.S.C. § 1951, which reaches public officials through extortion under color of official right. Section IV analyzes the development of honest services fraud, and its evolution into a federal bribery statute. Finally, Section V concludes that each circuit’s pattern jury instructions should reflect the vast similarities within federal bribery statutes by creating one “Bribery” instruction.8

I. The Development of Federal Bribery Law, Pattern Jury Instructions, and the United States Sentencing Guidelines’ Approach to Bribery

A. Federal Bribery Law

What is bribery? Courts tend to differ on an exact definition.9 The clearest articulation is that bribery is a form of public corruption, “which involves the offer and receipt of something of value for the purpose of influencing the exercise of authority.”10 Federal bribery statutes share the following common elements: (1) A public official accepted, received, or agreed to accept or receive a (2) thing of value (3) in exchange for official action (the quid pro quo).11 A quid pro quo, meaning “what for what,”12 denotes “a specific intent to give or receive something of value in exchange for an official act.”13 While this notion originated within § 201, a quid pro quo element is now contained within multiple federal bribery statutes, including the Hobbs Act and the mail fraud and wire fraud statutes.14 However, “fulfillment of the quid pro quo is not an element of the offense.”15 While the quid pro quo element provides a boundary for the crime of bribery, it has still not eliminated the uncertainty within this area of the law due to bribery’s vast “grey areas.”16

Bribery has been considered a serious offense since the United States’ inception.17 According to Henning and Radek, “among the first laws adopted after the ratification of the Constitution was a provision making it a federal crime to bribe customs officers and federal judges.”18 Some have even gone so far as to describe it as a “crime akin to treason.”19 Public corruption erodes the citizenry’s faith in its government, which in turn harms the government’s legitimacy.20 Bribery also serves to exploit public power for personal gain by using public leverage to receive a personal benefit.21 For these reasons, the federal government has a substantial interest in an honest government, necessitating the battle against public corruption.22Public corruption prosecutions became a significant priority for the Department of Justice in the 1970s after the Watergate scandal.23 In 1975, President Gerald Ford directed federal prosecutors to target state and local corruption,24 and in 1976, the Public Integrity Section of the Department of Justice was formed. 25 Indeed, Watergate created a “volcano of change in the world of public corruption” and indirectly led to the development of the Public Integrity Section itself.26 Throughout the 1970s, state and local public corruption prosecutions remained a high priority due to the fear that its effects would undermine the ability of the United States government to properly function.27 This emphasis on public corruption continued through the 1980s, and its prevention was a stated DOJ policy goal for the fiscal year 1987.28 Beginning in the mid-1980s, however, federal prosecutors began to focus more on public officials at the federal level, rather than state and local public officials.29Influencing a public official remains a serious offense within the federal system; a defendant receives a four-level increase to his offense level under the federal sentencing guidelines if the payment in question was for the purpose of influencing an official act.30 The maximum statutory sentences under each of the federal bribery statutes are by no means diminutive; the statutory maximum under § 201(b) (Bribery of a public official) is fifteen years,31 and under the Hobbs Act and honest services mail fraud and/or wire fraud, the penalty is twenty years.32 The penalties under honest services mail fraud and wire fraud may even be increased to a thirty-year maximum sentence under certain circumstances.33While there is a bribery statute specifically prescribed for prosecuting federal officials,34 the prosecution of state and local officials is, at best, a patchwork approach.35 Several similar bribery statutes exist that could apply to a given public corruption case, and a public official can be charged under more than one of these statutes.36 This hodgepodge approach to bribery is the source of its surrounding confusion and is why it must be remedied via pattern jury instructions.It is unlikely that Congress will remedy the situation by amending or consolidating its existing bribery statutes. Therefore the task is left to the drafting committees of pattern jury instructions to paint a clearer picture of bribery law.

B. Pattern Jury Instructions

Jury instructions serve as each circuit’s attempted consolidation and explanation of the law to be used by juries in federal criminal trials, and they are essential in properly instructing lay-juries on complex legal issues.37 By eliminating legal jargon and simplifying the law, pattern instructions can also serve as a helpful guide for practitioners. Pattern instructions provide jurors with this knowledge by explaining the crime and its elements in terms that a layperson can understand,38 bridging the gap between the law and the layperson.39 By putting difficult legal concepts into more straightforward terms, pattern instructions can also serve as a useful tool for lawyers trying to decipher a particularly confusing area of the law, such as federal bribery.

Pattern jury instructions are generally composed of an explanation of the statute or section’s elements, Use Notes, and/or Committee Commentary.40 Use Notes are interchangeable and are employed by the court to tailor the instructions to a given case. Committee Commentary, on the other hand, provides authority and a more in-depth explanation of the circuits’ applicable law for the statute, and essentially functions as a mini-treatise.41 This structure makes pattern jury instructions the ideal tool not only for practitioners looking to learn an area of the law, but as a way of definitively stating just what the law is. If federal bribery law is a jigsaw puzzle, pattern jury instructions can serve as the means to finally put the pieces together.Most circuits’ pattern jury instructions currently use one instruction for each and every bribery statute and offense, as illustrated by the Fifth Circuit. This circuit has drafted an instruction for receiving a bribe by a public official under § 201, as well as an instruction for extortion under color of official right and for honest services fraud, which all encompass bribery.42 Although each instruction has slightly different elements, their core elements are essentially the same, which will be further illustrated below. While the Sixth Circuit does not yet have any bribery offense instructions,43 Hobbs Act extortion under color of official right and honest services fraud instructions are currently being drafted.

C. United States Sentencing Guidelines

The bribery offenses discussed within this note are all found within § 2C1.1 of the Federal Sentencing Guidelines Manual: Offering, Giving, Soliciting, or Receiving a Bribe (§ 201); Extortion Under Color of Official Right (Hobbs Act); Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials (§ 1346).44 The Commission consolidated its sentencing guidelines by acknowledging the similarities among bribery statutes and placed honest services fraud (§ 201) and extortion under color of official right within the same base offense level and section.45 In doing so, the United States Sentencing Guidelines have implicitly recognized that the statute-by-statute approach is, in fact, not the most logical method. If consolidation can be achieved within a scheme as complex as the sentencing guidelines, it can—and should—be done within each circuit’s pattern jury instructions.

18 U.S.C. § 201—Receiving a Bribe by a Public Official

The federal bribery statute was enacted in 1962 as a part of a set of anti-corruption statutes targeting federal public officials. Various scattered anti-corruption provisions were streamlined into one set of laws with the Necessary and Proper Clause serving as Congress’s authority to enact the statute.46 Now, the main federal bribery statute, § 201, prohibits both bribery and unlawful gratuities given to and received by federal public officials.47 For purposes of this note, § 201(b)(2) is the primary focus: a public official seeking, receiving, accepting, or agreeing to accept a thing of value in return for being influenced in the performance of an official act.48 Although the statute primarily targets federal officials, it may reach local officials who administer federal programs and have some degree of official responsibility.49The key case that details § 201 is United States v. Sun-Diamond Growers of California.50 The circumstances leading up the decision are simple: a trade association engaged in lobbying activities on behalf of its member cooperatives made illegal gifts to then-Secretary of Agriculture Michael Espy.51 The Supreme Court examined the bribery-gratuity distinction under the statute and found that “[b]ribery requires intent ‘to influence’ an official act, or ‘to be influenced’ in an official act” and there must be a quid pro quo between the payment and official government action.52 Gifts that are only given to “build a reservoir of goodwill” with a public official are not sufficient.53 Only a bribe requires proof of a quid pro quo, while the separate crime of gratuities under § 201 does not.54The elements for receiving a bribe by a public official under 18 U.S.C. § 201(b)(2) according to most criminal pattern jury instructions are: (1) a public official demanded, sought, or received a (2) thing of value (3) corruptly (4) in return for being influenced in the performance of an official act (the quid pro quo element).55 The “corruptly” element should be eliminated, however, because it adds nothing to the statute and is more confusing than helpful. The Supreme Court has concluded that the word “corruptly” is “normally associated with wrongful, immoral, depraved, or evil.”56 This wrongfulness is captured by the quid pro quo, making the corruptly element obsolete. While some argue that the corruptly element differentiates lawful influence of an official act and an unlawful influence;57 the quid pro quo captures this distinction.Courts are beginning to read “corruptly” out of § 201, defining the element in terms of the quid pro quo.58 The Model Penal Code also disfavors the use of “corruptly.” Its commentary states that the element “provides virtually no guidance as to the intended scope of the law,”59 and that in its place, “the issues with which it deals should be addressed more particularly.”60 The corruptly element was not included within later bribery statutes, undoubtedly because the quid pro quo defines the issue of bribery more particularly than corruptly. “Corruptly” should, therefore, be eliminated within the proposed bribery instruction.As the remainder of this note will show, the foundational elements of § 201 are largely shared across various federal bribery crimes. Section 201 laid the groundwork for federal bribery law, therefore these elements served as a template for the bribery statutes and instructions that followed.

18 U.S.C. § 1951—The Hobbs Act (Extortion Under Color of Official Right)

Although § 201 covered bribery at the federal level, prosecutors were left without any method of prosecuting state and local officials involved in public corruption. In order to remedy this problem, prosecutors began to utilize more general statutes such as the mail and wire fraud statutes and the Hobbs Act in order to prosecute lower-level bribery.61 Specifically, the Hobbs Act’s jurisdictional element is very broad, which also allowed expansive prosecutorial discretion in order to combat public corruption.62The Hobbs Act was not originally designed to target public officials, but criminal organizations.63 Federal prosecutors began to use the statute to target public officials during the anti-corruption era of the 1970s, and first successfully used the statute in 1972 in United States v. Kenny.64 In Kenny, defendants involved with Jersey City, New Jersey’s “Democratic political-machine” were charged with color of official right extortion under the Hobbs Act, the first time the statute had been used to prosecute public corruption.65 Beginning with Kenny, the Hobbs Act and § 201 began to merge together.66 Although extortion under color of official right is used to prosecute state and local officials, it also covers bribery, and its elements are similar to those found in instructions that cover § 201.While the Hobbs Act does not explicitly mention bribery, the Supreme Court in Evans v. United States recognized that a defendant who has committed extortion under color of official right has effectively taken a bribe.67 In Evans, the petitioner was an elected commissioner of a county in Georgia who accepted payment to vote in favor of a rezoning application.68 Although petitioner argued that passive acceptance of a payment did not constitute extortion and that some form of inducement was required on his part, the Court was not convinced.69 Under Evans, even passive acceptance of a thing of value qualifies as a bribe, so long as the official knows that the payment is in exchange for official acts.70 The Court also held that the quid pro quo element was satisfied as soon as payment was accepted, because “fulfillment of the quid pro quo is not an element of the offense.”71After Evans, the elements of bribery of a federal public official under § 201 and Hobbs Act extortion under color of official right are basically the same. According to Professor Lindgren, the “traditional ‘color of office’ language links the two offenses” of bribery and extortion under color of official right,72 because the focus is on the person’s status as a public official. Some argue that the two crimes should be distinguished due to official right extortion’s one-sided nature.73 However, these arguments are outside the scope of this note, which is focused solely on the conduct of the public official.The United States Sentencing Guidelines originally used only the term “bribe” in the original version of § 2C1.1, but this term was amended to “payment” in order to allow the applicability of extortion under color of official right.74 Even § 2C1.1’s commentary was amended to harmonize bribery and this type of extortion, deleting exclusive “bribe” language and adding “extortion.”75 The Commission’s rationale for consolidating these bribery provisions is not articulated within the amendment, but it becomes abundantly clear after examining its Report, published two years later. The Report admits that the elements of various public corruption crimes are “similar,” and that because some of these offenses are comparable, they may merit consolidation.76Perhaps most importantly, the Report states that “no substantial distinction appears to exist between extortion under color of official right and the acceptance of bribes by a public official,” citing Evans for its proposition.77 It also recognizes that both crimes require a quid pro quo and specific intent.78 For these reasons, the crimes are now within the same sentencing guideline79 and receive the same base offense level (a ranking of seriousness based on conviction under a certain statute80), because “bribery of a public official is as serious a crime as extortion under color of official right.”81This consolidation of bribery under § 201 and Hobbs Act extortion under color of official right could easily be duplicated within each circuit’s pattern jury instructions. Substantial overlap exists between the crimes’ elements, as well as existing pattern instructions for each crime. The elements for extortion under color of official right within most pattern instructions are as follows: (1) a public official obtains, accepts, or agrees to accept a (2) thing of value that the public official was not entitled to receive (3) knowing the payment was made in return for official acts (the quid pro quo) and (4) interstate commerce was affected.82Comparing these instructions to those written for § 201,83 both the instructions for bribery of a federal public official and Hobbs Act color of official right extortion include common elements of (1) a public official, (2) a thing of value, and (3) a quid pro quo. While the “corruptly” element found among § 201 instructions is missing from the Hobbs Act—and likewise the Hobbs Act’s necessary jurisdictional element of an effect on interstate commerce is missing from § 201—these instructions are, at their core, the same. A simple Use Note could modify one “Bribery” instruction to easily reflect these elements when necessary.

18 U.S.C. § 1346—Honest Services Fraud (Bribery Theory)

A. The Development of the Honest Services Theory and Skilling v. United States

The honest services theory was officially codified in 1988 within 18 U.S.C. § 1346, providing another avenue of mail fraud and wire fraud prosecution under 18 U.S.C. § 1341 and § 1343.84 While the intangible right to honest services theory is found within § 1346, it is an alternate theory of a “scheme or artifice to defraud” under the federal mail and wire fraud statutes. Section 1346 does not create a new crime, but adds to the breadth of the mail and wire fraud.85 Now, prosecutors may choose to prosecute under one of two theories of a “scheme or artifice to defraud”: the deprivation of honest services, or the deprivation of money and/or property.86

At first glance, § 1346 does not appear to cover bribery. But in Skilling v. United States, the Supreme Court explicitly limited the scope of honest services fraud to those cases involving bribery or kickbacks.87 In Skilling, the Court considered whether an Enron executive had been improperly convicted of conspiracy to commit wire fraud under the honest services theory.88 Skilling’s alleged conduct included artificially inflating Enron’s stock prices by misrepresenting the corporation’s fiscal health in order to sell his stock and obtain a net profit of $89 million.89 Although Skilling was not a public official, he had previously served as Enron’s Chief Executive Officer before he resigned.90Skilling challenged § 1346 on the basis that the statute was void for vagueness, requiring the majority to limit its construction.91 The Court determined that the majority of honest services precedent applied to bribery and kickback schemes92 and concluded that Congress must have intended the statute to at least reach these two types of schemes.93 Thus, the Court held that § 1346 was limited to cover only bribery and kickbacks, not undisclosed self-dealing.94 Skilling’s conduct only amounted to the latter, making it impossible for him to have committed honest services fraud.95According to the Skilling majority, “the honest-services doctrine had its genesis in prosecutions involving bribery allegations.”96 In order to define this particular type of bribery, the Court referenced “federal statutes proscribing—and defining—similar crimes,” including § 201.97 By limiting conduct under § 1346 to only bribes and kickbacks, bribery was once again recriminalized, providing prosecutors with another method of punishing public officials involved in bribery.98Interestingly, the sentencing guidelines recognized the similarities between honest services fraud under § 1356, the Hobbs Act, and § 201 even before the Supreme Court’s decision in Skilling. Six years before the Court decided Skilling, the separate sentencing guideline dealing with honest services fraud was deleted and consolidated with § 2C1.1, which includes receiving a bribe under § 201 and extortion under color of official right.99 Originally several guidelines covered bribery and extortion offenses, but they were consolidated as of November 2004.100 Now, each of these offenses are found together, which is the approach that drafting committees of pattern jury instructions should adopt.Comparing § 201, the Hobbs Act, and honest services fraud, common elements exist among the three statutes. The elements for honest services fraud found within pattern jury instructions are: (1) a public official (2) in a scheme or plan to defraud (3) accepts a bribe or kickback (thing of value) (4) in exchange for official action (the quid pro quo) and (5) violated his duty of honest services to the public by using the United States Postal Service or an interstate carrier in order to carry out the scheme.101 Again, the three common core bribery elements—a public official, thing of value, and the quid pro quo—are all present. In order to define bribery, pattern instructions for honest services fraud generally refer the reader to its instructions for § 201.102 If these instructions are already referring the reader to § 201, it seems that it would be much simpler to merge the instructions, and have all pertinent information readily accessible within one instruction. It also reflects the similarity between the crimes; one of the purposes of § 1356 is to punish the type of bribery already covered under § 201. “While they do not explicitly contain the word ‘corruptly,’ the Hobbs Act [and] honest services fraud . . . have swallowed 201 . . . .”103 If the statutes are already merging into one another, so too should their pattern instructions.

B. Offered Solution

The proposed Bribery instruction would include the following elements: (1) A public official accepted, received, or agreed to accept or receive a (2) thing of value (3) in exchange for official action (the quid pro quo). Although multiple forms of bribery exist via different statutes such as the Hobbs Act, § 201, and § 1346, each statute essentially punishes the same conduct. Through Use Notes, the instructions could be modified for each crime, adding an element when necessary. Committee Commentary would also explain the controlling law, each relevant statute, and the statutes’ intersection with one another. This unified Bribery instruction would not only be easier to understand, but would render federal bribery more coherent. A consolidated Bribery instruction would serve as a backdoor method to achieve the goal of the failed Revised Federal Criminal Code, which intended to remedy federal criminal law’s piecemeal approach. Thus, pattern jury instructions could serve as the glue to piece the puzzle that is federal bribery law back together.

This consolidation would be similar to the United States Sentencing Commission’s Federal Sentencing Guidelines’ approach of placing similar bribery crimes within the same section.104 The Commission has acknowledged federal bribery statutes’ similarities, as should drafters of pattern jury instructions. The Guidelines’ approach demonstrates the feasibility of consolidation, and should be repeated within each United States Circuit Courts of Appeals’ Criminal Pattern Jury Instructions.

Bribery is currently a deeply confusing area with unnecessary overlap between statutes, which is why drafting committees of pattern jury instructions should lead the charge to effectively consolidate these statutes through pattern jury instructions. Not only will a consolidated, more streamlined instruction help to avoid jury confusion, but it will aid both practitioners in understanding and applying federal bribery law to the facts of a given case, and judges in conducting the trial. Because the elements for the aforementioned statutes are largely the same, there is simply no rationale for separate pattern jury instructions. Instead, bribery crimes should be consolidated into one cohesive “Bribery” instruction.

---

1 J.D. Candidate, 2016.

2 See Charles N. Whitaker, Federal Prosecution of State and Local Bribery: Inappropriate Tools and the Need for a Structured Approach, 78 Va. L. Rev. 1617, 1619-21 (1992) (discussing the variation in interpretation of federal bribery laws and lack of consensus on the definition of bribery).

3Peter J. Henning & Lee J. Radek, The Prosecution and Defense of Public Corruption: The Law and Legal Strategies 3 (2011).

4 See Vince Ventimiglia, et. al., Report of the Public Corruption Working Group 20-21 (1993), http://www.src-project.org/wp-content/uploads/2009/08/ussc_report_publiccorruption_19930908.pdf.

5 U.S. Sentencing Guidelines Manual § 2C1.1 (U.S. Sentencing Comm'n 2015).

6 See 18 U.S.C. § 201 (2011); 18 U.S.C. § 1951 (2010); 18 U.S.C. § 1346 (2010).

7 See, e.g., District Judges Association, Fifth Circuit Pattern Jury Instructions (Criminal Cases) (2015) (hereinafter Fifth Circuit) (referring the reader to 18 U.S.C. § 201(b) in order to define bribery within the context of honest services fraud).

8 The decision not to include 18 U.S.C. § 666 (theft or bribery concerning programs receiving federal funds) was due to its unique jurisdictional bases, but the proposed general bribery statute could apply to § 666 as well.

9 Daniel Hays Lowenstein, Political Bribery and the Intermediate Theory of Politics, 32 UCLA L. Rev. 784, 785-87 (1985).

10 Peter J. Henning, Federalism and the Federal Prosecution of State and Local Corruption, 92 Ky. L.J. 75, 94 (2003).

11 See, e.g., Fifth Circuit, supra note 7, §§ 2.09B, 2.56, 2.57, 2.73B.

12 Henning & Radek, supra note 3, at 15.

13 United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404-05 (1999).

14 See Evans v. United States, 504 U.S. 255, 256 (1992); see also Skilling v. United States, 561 U.S. 358, 412-13 (2010).

15 Evans, 504 U.S. at 268.

16 Lowenstein, supra note 9, at 786.

17 U.S. Const. art. II, § 4 (describing only two crimes as specific bases for impeachment, one of which is bribery).

18 Henning & Radek, supra note 3.

19 State ex rel. Brady v. Bates, 102 Minn. 104, 110 (1907) (Start, C.J., concurring).

20 Adam H. Kurland, The Guarantee Clause as a Basis for Federal Prosecutions of State and Local Officials, 62 S. Cal. L. Rev. 367, 377 (1989).

21 James Lindgren, The Theory, History, and Practice of the Bribery-Extortion Distinction, 141 U. Pa. L. Rev. 1695, 1705 (1993).

22 Kurland, supra note 20, at 376-77.

23 Geraldine Szott Moohr, Mail Fraud and the Intangible Rights Doctrine: Someone to Watch over Us, 31 Harv. J. on Legis. 153, 164 n.40 (1993).

24 Id.

25 Kurland, supra note 20, at n.26.

26 Reid Weingarten, Volcano of Change, 51 Hastings L.J. 693, 693-94 (2000).

27 Kurland, supra note 20, at n.26.

28 Id.

29 Moohr, supra note 23.

30 U. S. Sentencing Guidelines Manual § 2C1.1(b)(3) (U.S. Sentencing Comm’n 2015).

31 18 U.S.C. § 201(b) (4) (2011).

32 18 U.S.C. §§ 1341, 1951(a) (2010).

33 18 U.S.C. § 1341 (2010), 18 U.S.C. § 1343 (2011).

34 18 U.S.C. § 201 (2011).

35 John S. Gawey, The Hobbs Leviathan: The Dangerous Breadth of the Hobbs Act and Other Corruption Statutes, 87 Notre Dame L. Rev. 383, 418 (2011).

36 Henning & Radek, supra note 3.

37 See Luther C. Hames, Jr., Pattern Jury Instructions, 27 Mercer L. Rev. 291, 291-92 (1975).

38 See generally Fifth Circuit, supra note 7 (providing examples of jury instructions).

39 See Bethany K. Dumas, Jury Trials: Lay Jurors, Pattern Jury Instructions, and Comprehension Issues, 67 Tenn. L. Rev. 701, 708 (2000).

40 There is some variation among the judicial circuits, but each circuit has at least Use Notes or Committee Commentary, and some include both.

41 See, e.g., The Sixth Circuit Committee on Criminal Pattern Jury Instructions, Pattern Criminal Jury Instructions § 10.01 Committee Comment. (2015) [hereinafter Sixth Circuit].

42 Fifth Circuit, supra note 7, §§ 2.09B, 2.56, 2.57, 2.73B.

43 See Sixth Circuit, supra note 41, at Table of Contents.

44 U.S. Sentencing Guidelines Manual § 2C1.1 (U.S. Sentencing Comm’n 2015).

45 See id.

46 Henning, supra note 10, at 95-96.

47 18 U.S.C. § 201 (2011).

48 Id.

49 Dixson v. United States, 465 U.S. 482, 499-500 (1984).

50 526 U.S. 398 (1999).

51 Id. at 401-02.

52 Id. at 404-05.

53 Id. at 405.

54 Id.

55 See, e.g., Fifth Circuit, supra note 7, § 2.09B.

56 Arthur Andersen LLP v. United States, 544 U.S. 696, 705 (2005).

57 Eric J. Tamashasky, The Lewis Carroll Offense: The Ever-Changing Meaning of “Corruptly” within the Federal Criminal Law, 31 J. Legis. 129, 136 n.55 (2004).

58 See, e.g., United States v. Alfisi, 308 F.3d 144 (2d. Cir. 2002) (finding that evidence of a quid pro quo satisfied the corruptly element).

59 Model Penal Code § 240.1 cmt. 2 (Am. Law Inst., Official Draft and Revised Comments 1980).

60 Id. § 240.1 cmt. 1.

61 Henning, supra note 10, at 136-37.

62 Id. at 133.

63 Henning & Radek, supra note 3, at 107.

64 Id. at 108; United States v. Kenny, 462 F.2d 1205 (3d Cir. 1972).

65 See Gawey, supra note 35, at 397-99.

66 Id. at 398.

67 See Evans v. United States, 504 U.S. 255, 268 (1992) (“We hold today that the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.”). But see Steven J. Mulroy, Official Explanation: Defining Official Capacity and Related Color of Office Phrases in Bribery and Extortion Law, 38 U. Mem. L. Rev. 587, 598 (2008) (arguing that bribery and extortion remain distinct crimes).

68 Evans, 504 U.S. at 257.

69 Id. at 268.

70 Id.; Judicial Committee On Model Jury Instructions for the Eighth Circuit, Eighth Circuit Model Jury Instructions (2014) § 6.18.1951 cmt. (2014) (“Because threats or coercion are not required, the facts of some cases will be fairly similar to the facts of a bribery case . . . .”).

71 Evans, 504 U.S. at 268.

72 Lindgren, supra note 21, at 1728.

73 Gawey, supra note 35, at 394-95 (“The difference between bribery of a public official and official right extortion is that bribery covers both sides of a reciprocity. Whereas official right extortion reaches only the public official who receives a bribe, bribery reaches both the public official and the briber.”).

74 U. S. Sentencing Guidelines Manual § 2C1.1 app. C, vol. I (U.S. Sentencing Comm’n 2015).

75 Id.

76 Ventimiglia, et. al., supra note 4, at v.

77 Id. at 13.

78 Id. at 11, 13.

79 See id. at 2.

80 See Frank O. Bowman, III, Beyond Band-Aids: A Proposal for Reconfiguring Federal Sentencing After Booker, 2005 Chi. Legal F. 149, 156 (2005).

81 Ventimiglia, et. al., supra note 4, at 2.

82 See, e.g., Fifth Circuit, supra note 7, § 2.73B.

83 Id. §§2.12–13.

84 18 U.S.C. § 1346 (2010).

85 Henning & Radek, supra note 3, at 155-56.

86 See 18 U.S.C. § 1341 (2010); 18 U.S.C. § 1343 (2011); 18 U.S.C § 1346. Mail fraud involves fraudulently obtaining money or property through use of the Postal Service or any private or commercial interstate carrier; wire fraud involves the same conduct, but instead utilizes wire, radio, or television communication.

87 Skilling v. United States, 561 U.S. 358, 409 (2010).

88 Id. at 367.

89 Id. at 413.

90 Id. at 368.

91 See id. at 402.

92 Id. at 405, 407.

93 Id. at 408.

94 Id. at 409-410.

95 Id. at 413.

96 Id. at 408.

97 Id. at 412.

98 See Sarah Kelly & Megan Jeans, Honest Services Fraud: The Trial Courts’ Turn, 46 New Eng. L. Rev. on Remand 79, 83 (2012).

99 U.S. Sentencing Guidelines Manual app. C, vol. 111, amend. 666 (U.S. Sentencing Comm'n 2015); id. § 2C1.1.

100 Id. at app. C, vol. 111, amend. 666.

101 See, e.g., Fifth Circuit, supra note 7, §§ 2.56, 2.57.

102 See, e.g., id. § 257 (referring the reader to 18 U.S.C. § 201(b) in order to define bribery within the context of honest services fraud).

103 Gawey, supra note 35, at 419.

104 See U.S. Sentencing Guidelines Manual § 2C1.1 (U.S. Sentencing Comm'n 2015).

Money for Nothing and Your Facts for Free: An Exploration of Political Spending and a Proposal for Combatting Big Money Interests

Article | 104 KY. L. J. ONLINE 54 | January 11, 2016

Chris K. Stewart[1]

Introduction

Each election since 1998 has cost more than the one before it.[2] Total spending for the 2014 midterm was $3.77 billion.[3] Some estimates project spending on the 2016 presidential election alone may exceed six billion dollars.[4] While this consistent uptick in spending is a powerful testament to the ever-increasing role of money in politics, two other statistics are even more disturbing. First, in 2014 House races, the candidate who outspent the opposition claimed victory 94.2% of the time.[5] Second, in the 2014 midterm election, nationwide voter turnout dropped to its lowest level since 1942.[6] The dramatic uptick in spending coupled with historically low voter turnout paint a grim picture of the future of American elections.Since Citizens United v. Federal Election Commission,[7] scholars have offered numerous legal arguments hoping to convince the Supreme Court to reconsider its position on the Bipartisan Campaign Reform Act (BCRA). However, in the wake of American Tradition Partnership v. Bullock[8] and, most recently, McCutcheon v. Federal Election Commission,[9] the genie is decidedly out of the bottle, and the current Court is unlikely to reverse the trend. Thus, attempting to litigate the matter head-on is fruitless.This note will explore the political history that has brought us to this point. It will then propose two solutions, one of them legal and the other non-legal. The focus will be on the Commonwealth of Kentucky, though many arguments apply to other states as well.The first proposal is to parry the increase in spending with an increase in voter access via early voting. Early voting allows registered voters to cast an in-person vote during a defined period before Election Day. Kentucky does not currently have an early voting scheme, and this note argues that early voting facilitates increased voter access across a broad spectrum of potential voters. When casting a ballot is as easy as possible for all eligible voters, the influence of money in politics can be minimized. Moreover, the Sixth Circuit Court of Appeals outlined the constitutional importance of early voting by applying heightened scrutiny to Ohio's early voting law in Obama for America v. Husted.[10]The second proposal involves the increased presence of nonpartisan, fact-checking services. For younger voters, these organizations should step up their social media presence. Platforms such as Facebook, Twitter, and Instagram should offer free ad space to permit easy-to-understand explanations of misleading campaign ads. For older voters, local television stations should adopt, as part of their campaign coverage, a weekly segment that offers a non-partisan, fact-based assessment of the most recent ads for local elections of interest.Ultimately, the goal of election reform should be to allow as many eligible voters as possible to exercise the franchise, armed with reliable information that enables them to cast a vote reflective of their personal beliefs. As Louis Brandeis famously noted, "Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."[11]

I. Corruption and Concealment: A Historical Overview of Campaign Finance Law

A. The Early Years

American politics has always carried the stigma of corruption. Originally, officials feared that candidates might corrupt voters or the voting process through bribes or other means. George Washington may have been unable to tell a lie, but when he ran for the Virginia House of Burgesses in 1758, that didn't stop him from spending thirty-nine pounds, six shillings on purchasing for voters "‘a hogshead and a barrel of punch, thirty-five gallons of wine, forty-three gallons of strong beer, cider, and dinner for his friends.’"[12] Washington's election agent provided about a half-gallon of booze for each voter.[13] This process was affectionately known as "swilling the planters with bumbo."[14]At the end of the nineteenth century, America saw the rise of the career politician.[15] These politicians often were not independently wealthy and therefore relied heavily on contributions from others to run a campaign.[16] With this trend came modern, more expensive campaigns, and the script was flipped: new fears emerged that contributors would exercise undue influence on governance, rather than the original concern, maintaining the integrity of the electorate.[17]Early campaign finance legislation enjoyed bipartisan support, with Republican president Theodore Roosevelt giving fervent speeches to Congress calling for limitations on the influence of special interests and increases in disclosure requirements.[18] This led to the passage of the first federal campaign finance disclosure law, the Publicity of Political Contributions Act of 1910 (Publicity Act).[19] The Publicity Act required congressional candidates to submit disclosure statements regarding the identity of their donors before the general election.[20] The Act did not, however, apply to candidates for the presidency, a weakness that would become fully apparent during the Teapot Dome Scandal where Interior Department Officials were bribed in exchange for oil drilling rights.[21] The scandal prompted Congress to amend the Publicity Act with the Federal Corrupt Practices Act in 1925,[22] which would serve as the principal campaign finance law for nearly five decades.[23]

B. Calls for Reform as Spending Ramps Up

By the late 1960's, an explosion in campaign spending coupled with a nearly universal evasion of the prohibition against corporate expenditures and disclosures, "which was ‘honored more in the breach than in the observance,’" provided the impetus for reform.[24] Congress passed and President Nixon signed the Federal Election Campaign Act of 1971 (FECA).[25] FECA limited the total amount candidates could spend on advertising.[26] It also limited the amounts candidates and their families could spend on their own campaigns and provided for the reporting of sources and uses of campaign funds.[27] According to a statement released upon signing the bill, President Nixon hoped that "this legislation will guard against campaign abuses and will work to build public confidence in the integrity of the electoral process.[28] The irony of this statement cannot be ignored, given the laundry list of Nixon's FECA violations that would come to light over the next two years.[29] These would include, among many others, a $2 million donation from American Milk Producers, Inc. divided into $2500 contributions from hundreds of shell committees given in exchange for federal price supports.[30]Outrage over Watergate led Congress to amend FECA in 1974. Challenges to the amendments appeared almost immediately. In 1976, the Supreme Court issued its first ruling on FECA in Buckley v. Valeo.[31] The Court upheld as constitutional the right of Congress to limit individual contributions, finding that corruption or the appearance of corruption was sufficient justification to limit these donations.[32] On the other hand, the Court struck down FECA's limitations on individual expenditures, meaning moneys spent in support of an individual candidate but not given directly to the campaign.[33] Buckley thus left some room for campaign finance regulation, but future legislation and subsequent First Amendment challenges would erode such laws far beyond the Buckley Court's wildest dreams.

C. Soft Money, the Bipartisan Campaign Reform Act, and the Maelstrom That Followed

The Buckley Court narrowly construed FECA's disclosure requirements to only apply to acts of express advocacy. "Magic Words" such as "vote for" or "reject" had to be present before candidates were required to disclose sponsors of the ads.[34] Not surprisingly, candidates, donors, and any number of interest groups, corporations, and unions began to circumvent the disclosure through soft money advertising.[35] These groups were not subject to disclosure requirements and could therefore spend unlimited amounts on what came to be known as sham issue ads.[36] Typically, these ads would feature an issue of the day followed by a description of the candidate’s position on that issue.[37] Viewers would then hear a message such as "call up this candidate and say thank you for her commitment to this issue."[38] Because there was no express call for anyone to vote for the candidate in question, no one need report the sources or costs of these advertisements.[39]Eventually, Congress amended FECA with the Bipartisan Campaign Reform Act of 2002 (BCRA). This placed a ban on soft money and addressed the problem of express versus issue advocacy by creating a category of speech it termed electioneering communication.[40] Congress defined electioneering communications to include "any broadcast, cable, or satellite communication" that "refers to a clearly identified candidate for federal office," is made within 60 days of a general election or 30 days of a primary or convention, and "is targeted to the relevant electorate."[41]BCRA even included what appears to be a backup definition of electioneering communication. In the event the original is found constitutionally deficient, BCRA provides that an electioneering communication is:

any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.[42]

Within days of the passage of BCRA, eleven lawsuits emerged challenging the new law.[43] Eighty-four plaintiffs, later reduced to seventy-seven, spanned the political gamut from the National Rifle Association and Republican National Committee to the California Democratic Party and the AFL-CIO.[44] But the lead plaintiff was Senator Mitch McConnell of Kentucky.[45] After an exhaustive fact-finding process, followed by nine hours of oral arguments featuring twenty-three lawyers, the district court issued its opinion, which upheld much of BCRA.[46] The Supreme Court granted certiorari, and the oral argument was an unusually long four hours with eight attorneys.[47] On December 10, 2003, eight of nine justices voted to uphold the electioneering communications portion of BCRA.[48] Perhaps more importantly given the subsequent history in Citizens United, the Court voted to uphold the prohibition of the use of corporate and labor treasury funds in electioneering communications.[49] The Court reasoned that corporations and labor unions could adequately influence the political process through their political action committees, and the restrictions on the use of general funds acted as a regulation, not a restriction.[50] Moreover, the Court killed the magic words test from Buckley, recognizing that using it as the measure of express advocacy "is functionally meaningless."[51]The McConnell Court left open the possibility for as-applied challenges to the electioneering communications disclosure requirements, and it was only a matter of time before new litigation cropped up to test the limits of BCRA.[52] In 2007, Wisconsin Right to Life challenged the FEC, arguing that the prohibition against corporate and union funds for ads that are not express advocacy or their functional equivalent was unconstitutional.[53] The Supreme Court agreed, and corporations and unions were suddenly free to open their coffers for independent expenditures on issue advertisements.This sudden shift in campaign finance jurisprudence in just four short years seems baffling on its face but makes much more sense in the light of one other important change. Justice O'Connor, author of the 5-4 opinion in McConnell, retired in 2005[54] and was replaced by the conservative Justice Alito.[55]Finally, in 2010, the Court held by a 5-4 margin in Citizens United v. FEC that the government's previous justification for regulating corporate expenditures, preventing corruption or the appearance of corruption, no longer passed constitutional muster.[56] Justice Kennedy narrowed the definition of corruption to encompass only situations where there is clear evidence of a quid pro quo exchange between candidate and donor, not merely signs of ingratiation or access.[57] This ruling signaled the removal of a final obstacle, and corporations and unions could subsequently spend directly from their treasuries on express advertisements on behalf of candidates.The response to Citizens United was immediate and overwhelming. The Brennan Center for Justice has compiled data from U.S. Senate races since 2010.[58] Senate races are a particularly effective measure of outside influence on elections because the balance of power in the Senate has been a genuine issue in all three elections since 2010.[59] Outside spending on candidates has more than doubled since Citizens United. This is a conservative estimate, which does not include the innumerable sham issue ads, which still carry no disclosure requirements.[60] While some hoped that state laws might be able to combat the effect of Citizens United, the Supreme Court made it clear that its decision was not simply made on the facts of that case, but was controlling precedent until otherwise stated.[61]

II. Moving Forward

Given the clear trend in campaign finance jurisprudence toward allowing greater contributions with minimal disclosure, attempting to combat big money influence in politics through the FEC and federal judiciary seems, at least for the time being, a fool's errand. Another approach is needed, and it should happen at the state and local level through a combination of insuring access to the polls through early voting as well as providing citizens with nonpartisan perspectives on the frequently misleading advertisements promulgated by both parties.

A. An Overview of Early Voting

There will likely continue to be attempts by some state legislatures to rein in political spending. However, as these laws will undoubtedly face lengthy, expensive, and almost certainly successful First Amendment challenges, opponents of big money spending should take a more pragmatic, grassroots approach. By turning their attention away from litigation and toward efforts to expand access to the polls, opponents of political spending will encounter a new path to their goal while simultaneously swelling support for voter access. Early voting is one obvious way to expand the franchise, thus insuring that voting is as easy as possible for as many citizens regardless of the flood of political spending.While in person early voting is a relatively new phenomenon, researchers are beginning to collect enough empirical data to answer some questions. In assessing the efficacy of electoral reforms, researchers typically weigh at least two considerations.[62] First, researchers ask whether the reform increases the level of participation.[63] Second, the researchers ask whether, and to what extent, the reform affects the quality of voter participation.[64]Enough empirical evidence has accumulated to answer the first question. In general, early voting schemes do not serve to bring new voters into the system. However, the data suggest that early voting does encourage voters to participate in lower-intensity contests that they would otherwise skip.[65] As for the second question, the data are as of yet too sparse to assess whether early voting impacts the quality of democratic decision making.[66] However, regardless of what future analysis reveals as election cycles pass and more data are gathered, the impact of early voting on the quality of the electorate is secondary to its objective ability to increase voter access.A second effect of early voting schemes is how they may impact the political calculus that candidates use to structure their campaigns. In American presidential elections, recent history reveals a clear pattern. Campaigns become extremely active around Labor Day, followed by candidate debates in September and October, and a final push near November and Election Day.[67] Early voting can impact this cycle. In districts with early voting, candidates could hypothetically find themselves flooding the market with expensive advertising, unintentionally targeting citizens who have already voted.[68] Of course, this could simply cause campaigns to pull back at an earlier point in the campaign and flood the market during the early voting window. However, this strategy could potentially create marketing overkill and lessen the impact of the advertisements, thereby depriving money interests of some measure of influence.

B. The Equitable Case for Early Voting

Not everyone can manage to make it to the polls on Election Day. Consider the following hypothetical. A registered nurse lives in the East end of Jefferson County, Kentucky, and works on the far west end of Jefferson County. This nurse works twelve-hour shifts. He must clock in at 7:00 AM, and he clocks out at 7:00 PM. His commute is, on average, forty-five minutes. In order to clock in on time, he leaves his home each morning at 6:00 AM.Kentucky polls open at 6:00 AM.[69] The Kentucky Constitution provides that the legislature should fashion a law requiring employers to give employees leave to vote during the work day.[70] While this law is on the books,[71] the reality of our hypothetical nurse is that he works in an underserved area, performing emergency services. Leaving work for him could cause him to choose between a person's physical wellbeing and his right to exercise the franchise. Moreover, because polls require all voters to be in line at 6:00 PM,[72] our nurse cannot vote after his shift, which ends at 7:00 PM.This hypothetical paints a picture of an able-bodied, educated person for whom voting could be nearly impossible during the statutorily-defined polling hours. However, it is worth noting that voting on Election Day can create substantial burdens for many other groups. It goes without saying that physically accessing the polls creates additional barriers for the physically disabled. Additionally, single working parents, the poor, and African Americans have been shown to take advantage of early voting at a rate disproportional to others.[73] For these early voters, the democratic calculus extends beyond simply weighing issues, candidate qualifications, or special interests. Rather, these voters face a host of systemic barriers and must further ask how they will get to the polls, whether they can spare the time and potential lost income, and in many cases, who will watch the kids.[74] Because of scenarios such as these, thirty-three states and the District of Columbia have adopted some form of early voting.[75]

C. The Constitutional Significance of Early Voting

It is clear from the previous section that early voting is a useful tool to facilitate voter access. However, there is an additional compelling reason for Kentucky to adopt early voting as well. The Sixth Circuit Court of Appeals has underscored the importance of early voting by applying heightened scrutiny to Ohio's early voting scheme in Obama for America v. Husted.[76]On July 17, 2012, Obama for America, the Democratic National Committee, and the Ohio Democratic Party filed suit in district court against John Husted in his official capacity as the Attorney General of Ohio.[77] At issue in the case was an Ohio statute that imposed a deadline of 6:00 PM for in person early voting, while allowing military and overseas voters to cast votes through the weekend.[78] The plaintiffs alleged that the statute imposed an undue burden on the fundamental right to vote, and that this burden was not supported by a sufficiently weighty state interest.[79] The state argued that the need for providing military voters with extra time, coupled with the burden on local election boards of facilitating the additional time for non-military voters was a sufficient need to allow for the disparate cutoff times.[80]The district court held a hearing and considered a wealth of demographic information, legislative history, and depositions of military officers and voting experts.[81] After considering the evidence, the district court granted the plaintiff's motion for a preliminary injunction and ordered that early voting in Ohio be available to all voters regardless of military status.[82] The State and various interveners appealed.[83]Ohio originally implemented its early voting scheme after the 2004 election, when long lines kept polls open—in some cases, into the early hours of the morning after Election Day.[84] Many Ohio residents took advantage of the new opportunity, and in 2008, 20.7% of registered voters cast early ballots, which represented 29.7% of total votes cast.[85]Before drawing its legal conclusions, the court considered several demographic factors in the evidentiary process.[86] Expert testimony revealed a number of truths concerning the demographics of citizens who chose to vote early.[87] Those who took advantage of the option were “more likely than election-day voters to be women, older, and of lower income and educational attainment."[88] Moreover, statistics from Cuyahoga and Franklin County, the homes of Cleveland and Columbus respectively, suggested that early voters were disproportionately African American.[89] Regardless of the overall impact on turnout, these statistics confirm what people on the ground know intuitively: making it to the polls on Election Day is much more difficult for the poor, elderly, and disabled.The legal analysis follows the demographic assessment.[90] The court recognized that voting is one of our most precious fundamental rights, and that equal protection applies not only to the granting of the franchise, but also in the manner of its exercise.[91] Moreover, the court added that heightened scrutiny under the Equal Protection clause is invoked when different groups of voters are treated differently.[92] This distinction was an important signal of which way the subsequent analysis would go given that the Ohio law clearly created different groups of military and non-military voters.The court then went on to determine which level of scrutiny to apply to the Ohio early voting law.[93] A general grievance by a plaintiff that she is being treated differently from another person in a similarly-situated class will not receive more than a rational basis review unless she can identify a corresponding burden to the franchise.[94] The level of scrutiny will depend on the severity of the burden.[95] Where the burden is severe, strict scrutiny will apply, but most cases fall under the flexible balancing test outlined in Anderson v. Celebrezze and Burdick v. Takushi.[96] The court outlined the standard as follows:

A court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs’ rights.”[97]

The State and interveners urged the court in Obama for America to apply a rational basis standard, arguing that a straight-forward equal protection claim required a straight-forward equal protection analysis.[98] But the court wrote, "However, when a state regulation is found to treat voters differently in a way that burdens the fundamental right to vote, the Anderson-Burdick standard applies."[99] Notably, this language clearly indicates that the court was affording early voting the same constitutional weight as an in-person vote cast on Election Day.The State further based its claim on McDonald v. Board of Election Commissioners, where the Supreme Court applied rational basis review to an Illinois law denying un-sentenced inmates absentee ballots.[100] The McDonald court found no fundamental right to receive an absentee ballot, particularly where the regulation did not discriminate on the basis of race or wealth, and there were no other signs that the state had otherwise restricted the inmate’s right to vote.[101] However, the court in Obama for America disagreed and created an important distinction. Opponents to early voting may argue that, because in-person voting is still available regardless of early voting, any changes to the early voting laws do not fundamentally affect a citizen's right to vote.The Obama for America court held that the plaintiffs need not be legally prohibited from voting, only that they present a showing that their right to vote was burdened, and they had few other alternatives to access the ballot.[102] The court pointed to statistical sampling that suggested that some one hundred thousand Ohio voters planned to vote in the three days in dispute, and these voters were disproportionately female, older, and of lower education levels.[103] By shortening the early voting window after initiating the system, the state of Ohio created enough of a burden on the right to vote to require justification under the Anderson-Burdick standard.[104]Ohio needed to offer justifications both for why it was restricting voting rights as well as why it treated non-military voters differently from military voters.[105] As for the first, Ohio claimed that local election boards were too busy in the days leading up to Election Day to accommodate early voters.[106] The State justified disparate treatment of voters with the need to accommodate military voters and their families.[107] Ohio argued that, because military voters can be called away at a moment's notice, the State was justified in extending early voting privileges to these voters while denying it to others.[108]The court weighed the magnitude of the plaintiff's injury against Ohio's proffered justifications.[109] As for the contention that election boards needed the window to prepare for Election Day, the court cited evidence that, in fact, early voting may alleviate Election Day problems by eliminating long lines and the need for extended polling hours.[110] Moreover, the court noted that "Ohio’s statutory scheme is not generally applicable to all voters, nor is the State’s justification sufficiently 'important' to excuse the discriminatory burden it has placed on some but not all Ohio voters."[111]The court similarly rejected Ohio's second justification, that military voters require special accommodations because of the risk of being suddenly called away. Here, the court points out that the Equal Protection Clause does not forbid classifications, it merely prohibits treating groups of individuals differently who are otherwise similarly situated.[112] In this case, while military voters are distinct for certain aspects of the voting process, like the need for more liberal rules for obtaining and submitting absentee ballots,[113] the court does not accept Ohio's justification for the purposes of early voting.[114] The court reasons, "[A]ny voter could be suddenly called away and prevented from voting on Election Day. At any time, personal contingencies like medical emergencies or sudden business trips could arise, and police officers, firefighters and other first responders could be suddenly called to serve at a moment’s notice."[115] Therefore, while Ohio has a justification for offering military voters more time to vote, there is not a corresponding justification for offering other voters less time, and shortening the window of early voting for some, and not all voters, represents an unconstitutional burden on the right to vote.[116]In this case, the level of scrutiny and the reliance on equal protection are clear indications that the court intentionally analyzed early voting in Ohio as a fundamental right on par with in-person voting on Election Day.[117] This suggests that, barring further clarification from additional litigation resulting in a resolution of the issue by the Supreme Court, early voting will from now on receive heightened scrutiny in the Sixth Circuit. The implications for Kentucky are two-fold. First, given the reasons outlined in part A) of this section, Kentucky should adopt a system of early voting to expand access to the polls. And, second, in order to implement a constitutional early voting scheme, the system should be comprehensive and should not make any efforts to classify similarly situated voters.[118]

D. Nonpartisan Fact-Checking

There is a second solution, which exists independent of any courtroom or legislative chamber. This solution involves increasing the quality of voter participation by insuring that voters arrive at the polls on Election Day having chosen their candidates based on good information, not corrupted by misleading advertising. The neatest way to accomplish this is through the promotion of fact-checking services. If fact-checkers occupy a more visible platform and broadcast as widely as possible, opponents of the explosion in political spending may eventually feel satisfied that, at the very least, voters of all demographics possess the requisite tools for making an informed decision on Election Day.As previously stated, much of the money in political campaigns is dedicated to advertising, and much of these advertisements are, at best, variations on the truth, and at worst, misleading, false, and potentially defamatory statements.[119] For example, when Mitt Romney kicked off his campaign, one of his first ads featured a sound bite of President Obama saying, "if we keep talking about the economy, we're going to lose."[120] This commercial stands as a prime example of a misleading ad because, while President Obama did utter those words, the Romney camp truncated the quotation so badly that it ignored one crucial fact, when President Obama made the statement, he was directly quoting Senator John McCain, his Republican opponent in the previous election.[121] The reductio ad absurdum of this technique would be a commercial with President Obama saying "Vote for Romney," while leaving off the first half of the statement, "Republicans contend you should . . ."The website PolitiFact.com rated this advertisement "Pants on Fire," its most excoriating rebuke of the truthfulness of a statement.[122] However, given the relatively limited scope of PolitiFact when compared with the Romney campaign, the effect of the "Pants on Fire" rating did less than one might think to impact the efficacy of the advertisement. In reality, the die was cast. Potential voters heard the message and turned their attention toward the economy, focusing on Obama's policies in the process.[123]In 2009, PolitiFact won a Pulitzer Prize for journalism for their coverage of the 2008 presidential election.[124] The website sifted through over 750 political claims made during the 2008 campaign.[125] Since then, PolitiFact has increased the breadth of its coverage, regularly fact-checking the Sunday news shows in a series called PunditFact,[126] and even live-tweeting the primary debates in the run up to the 2016 presidential election.[127] PolitiFact used Twitter to solicit questions from debate viewers, and relied on its extensive body of work to provide up-to-the-minute assessments of candidate's veracity.[128] This information can combat misleading political advertisement, but the average voter needs greater access to this information.One method to increase the influence of fact-checking websites is to amplify their broadcast power. The reach of misleading political ads is enormous. Justice Brandeis famously noted, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."[129] If this is so, then perhaps it would benefit voters to hear the messages of fact-checkers as frequently as they hear misleading radio and television ads. Concerned citizens should consider, rather than donating to a super PAC, using their political capital to support non-partisan fact-checking. Presently, effective advertisement would expansively target social media platforms. Social media is an effective means of reaching millennial voters, but television and radio advertising still garners the bulk of political spending.[130] Given this, local news broadcasts should adopt a nonpartisan, fact-checking segment in the period approaching the election. The news, traditionally a source of objective reporting, will make a strong ally in the effort to create an informed electorate.To clarify, all of these efforts must be accomplished without governmental involvement. The state is a poor arbiter of truth. The government cannot, therefore, serve as the fact-checker. At least one state supreme court has held truth in advertisement laws to be unconstitutional because they placed the burden on the government of proving truth or falsity.[131] However, some claims, as PolitiFact has proven, are simply false, and as many of these should be brought to light by non-partisan, not for profit fact-checkers as possible.

Conclusion

While the recent explosion in political spending is unlikely to slow down any time soon, implementing an early voting program and promoting robust fact-checking will insure that, on Election Day, the roar of political spending does not drown out the voice of the most important political speakers, the voters. Additionally, these steps can insure that the voice with which the electorate speaks is informed and reflective of the people's will. By allowing early voting, the Kentucky legislature would signal that, no matter how partisan political issues may be, voters can trust that, during election season, their representatives and hopeful representatives are as concerned with providing a government that reflects the will of the constituency as they are with electoral success. The heightened scrutiny applied to early voting laws in the Sixth Circuit underscores the constitutional significance of early voting programs.Second, the tidal wave of political advertisements can be met with truth and nonpartisan fact-checking on a national, state, and local level. Increasing the visibility of these important organizations will serve to offer a populist response to the shifting control of political spending from individual contributors to a few donors with outsized financial resources.As more people realize the futility of further litigation against the money interests in light of the current Supreme Court's ideological composition, there is no doubt that additional grassroots ideas will crop up to combat the influence of money in politics. Some will be more successful than others, but advocates for voting rights and campaign finance reform should openly welcome new ideas, allowing each to succeed or fail on its own merits. At the end of the day, the goal for everyone should be an open, honest, and fair political process.

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[1] I want to extend my sincerest thanks to the Kentucky Law Journal, Professor Josh Douglas of the UK College of Law, my wife Emily, and my guide dog Baron for their immeasurable contributions to my achievements in law school.

[2] Russ Choma, Money Won on Tuesday, but Rules of the Game Changed, OpenSecrets: Blog (Nov. 5, 2014), http://www.opensecrets.org/news/2014/11/money-won-on-tuesday-but-rules-of-the-game-changed/.

[3] Russ Choma, Final Tally: 2014’s Midterm Was Most Expensive, with Fewer Donors, OpenSecrets: Blog (Feb. 18, 2015), http://www.opensecrets.org/news/2015/02/final-tally-2014s-midterm-was-most-expensive-with-fewer-donors/.

[4] See e.g. Meg James, Political Ad Spending Estimated at $6 Billion in 2016, L.A. Times (Nov. 18, 2015), http://www.latimes.com/entertainment/envelope/cotown/la-et-ct-political-ad-spending-6-billion-dollars-in-2016-20151117-story.html.

[5] Id.

[6] Doug Mataconis, Voter Turnout in 2014 Midterms Hit Lowest Point Since 1942, Outside the Beltway (Nov. 15, 2014), http://www.outsidethebeltway.com/voter-turnout-in-2014-midterms-hit-lowest-point-since-1942/.

[7] 558 U.S. 310 (2009).

[8] 132 S. Ct. 2490 (2012).

[9] 134 S. Ct. 1434 (2014).

[10] 697 F.3d 423, 430 (6th Cir. 2012).

[11] Louis D. Brandeis, Other People’s Money – Chapter V, Louis D. Brandeis School of Law Library, https://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/other-peoples-money-chapter-v (last visited Dec. 28, 2015).

[12] Mary V. Thompson, Beer. George Washington's Mount Vernon, Mount Vernon Estate & Gardens, available at http://www.mountvernon.org/research-collections/digital-encyclopedia/article/beer/ (last visited Jan. 3, 2016).

[13] Lisa Bramen, Swilling the Planters with Bumbo: When Booze Bought Elections, Smithsonian.com (Oct. 20, 2010), http://www.smithsonianmag.com/arts-culture/swilling-the-planters-with-bumbo-when-booze-bought-elections-102758236/?no-ist.

[14] Id.

[15] Trevor Potter & Bryson B. Morgan, The History of Undisclosed Spending in U.S. Elections & How 2012 Became the “Dark Money” Election, 27 Notre Dame J.L. Ethics & Pub. Pol'y 383, 400 (2013).

[16] Id.

[17] Id.

[18] Id. at 385-86.

[19] Id. at 386.

[20] Id.

[21] See generally M. R. Werner & John Starr, Teapot Dome (1959).

[22] Potter & Morgan, supra note 15, at 404-05.

[23] Id. at 405.

[24] Id. at 411-12 (noting that campaign spending nearly doubled between 1956 and 1968 from $155 million to nearly $300 million).

[25] Id. at 412.

[26] See id.

[27] Id. at 412-13.

[28] Leon Friedman & William F. Levantrosser, Richard M. Nixon: Politician, President, Administrator 301 (1991).

[29] See id. at 414.

[30] Id.

[31] Buckley v. Valeo, 424 U.S. 1 (1976)

[32] Id. at 27.

[33] Id. at 143.

[34] Id. at 44 n.52.

[35] Potter & Morgan, supra note 15, at 428.

[36] Commentary: The Campaign Finance Page, The Free Expression Policy Project, http://www.fepproject.org/commentaries/campaignfinance.html#three (last updated Jan. 22,2010).

[37] Id.

[38] Id.

[39] See Buckley v. Valeo, 424 U.S. 1, 44 (1976).

[40] 52 U.S.C. § 30104(f)(1)-(2) (West, Westlaw current through P.L. 114-93 (excluding P.L. 114-74 and 114-92) approved Nov. 25, 2015).

[41] 52 U.S.C. § 30104(f)(A)(i)(I)-(III) (West, Westlaw current through P.L. 114-93 (excluding P.L. 114-74 and 114-92) approved Nov. 25, 2015).

[42] 52 U.S.C. § 30104(f)(3)(A)(ii) (West, Westlaw current through P.L. 114-93 (excluding P.L. 114-74 and 114-92) approved Nov. 25, 2015).

[43] Commentary: The Campaign Finance Page, supra note 36.

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] McConnell v. FEC, 540 U.S. 93, 110, 196 (2003) (upholding BCRA § 201); see also id. at 321 (Kennedy, J., joined by Rehnquist, C.J. and Scalia, J.) (voting to uphold § 201).

[49] Id. at 104.

[50] Id.

[51] Id. at 193.

[52] See James Bopp, Jr. & Richard E. Coleson, The First Amendment is Still Not a Loophole Examining McConnell's Exception to Buckley's General Rule Protecting Issue Advocacy, 31 N. Ky. L. Rev. 289, 325 (2004).

[53] See FEC v. Wis. Right to Life, Inc. 551 U.S. 449, 449-50 (2007).

[54] William Branigin, Fred Barbash & Daniela Deane, Supreme Court Justice O'Connor Resigns, Wash. Post (July 1, 2005, 7:11 PM) http://www.washingtonpost.com/wp-dyn/content/article/2005/07/01/AR2005070100653.html.

[55] David Stout, Alito Is Sworn in After 58-42 Vote to Confirm Him, N.Y. Times (Jan. 31, 2006) http://www.nytimes.com/2006/01/31/politics/politicsspecial1/31cnd-alito.html?_r=0.

[56] Citizens United v. FEC, 558 U.S. 310, 312, 317 (2010).

[57] Id. at 909-10.

[58] Ian Vandewalker & Eric Petry, Election Spending 2014: Outside Spending in Senate Races Since Citizens United, Brennan Ctr. For Justice (Jan. 13, 2015), http://www.brennancenter.org/publication/election-spending-2014-outside-spending-senate-races-citizens-united.

[59] Id.

[60] Id.

[61] Am. Tradition P'ship, Inc. v. Bullock, 132 S. Ct. 2490, 2491 (2012).

[62] Paul Gronke, Early Voting Reforms and American Elections, 17 Wm. & Mary Bill Rts. J. 423, 432 (2008).

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] Id. at 434.

[68] See id.

[69] Ky. Const. § 148.

[70] Id.

[71] Ky. Rev. Stat. Ann. § 118.035(2) (West, Westlaw current through the end of the 2015 regular session).

[72] Ky. Rev. Stat. Ann. § 118.035(1) (West, Westlaw current through the end of the 2015 regular session).

[73] Badger, Emily, Why Early Voting Is About So Much More Than Convenience, Wash. Post (Sept. 30, 2014), http://www.washingtonpost.com/blogs/wonkblog/wp/2014/09/30/why-early-voting-is-about-so-much-more-than-convenience/.

[74] Id.

[75] Nat'l Conference of State Legislatures, Absentee and Early Voting, (Feb. 11, 2015), http://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx.

[76] Obama for America v. Husted, 697 F.3d 423, 429-30 (2012).

[77] Id. at 425.

[78] Id.

[79] Id.

[80] Id. at 427.

[81] Id. at 426.

[82] Id. at 423.

[83] Id. at 425.

[84] Id. at 426.

[85] Id.

[86] Id. at 426-27.

[87] Id.

[88] Id.

[89] Id. at 427.

[90] See id. at 428-37.

[91] Id. at 428 (quoting Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966); League of Women Voters v. Brunner, 548 F.3d 463, 477 (6th Cir. 2008)).

[92] Id. at 429 (citing McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807-09 (1969); quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)).

[93] Id.at 429-30.

[94] Id. at 429 (citing McDonald, 394 U.S. at 807-09).

[95] Id. (quoting Burdick, 504 U.S. at 434).

[96] Id.; Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick, 504 U.S. at 428-50.

[97] Obama for America, 697 F.3d at 429 (quoting Burdick, 504 U.S. at 434).

[98] Id. at 430.

[99] Id. (citing Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, (6th Cir. 2011)).

[100] Id.; McDonald, 394 U.S. at 803.

[101] Obama for America, 697 F.3d at 431 (citing McDonald, 394 U.S. at 807).

[102] Id. at 431 (quoting Citizens for Legislative Choice v. Miller, 144 F.3d 916, 921 (6th Cir. 1998)).

[103] Id.

[104] Id.

[105] Id. at 431-32.

[106] Id. at 432.

[107] Id.

[108] Id. at 434.

[109] Id. at 433.

[110] See id. at 433.

[111] Id. at 434.

[112] Id. at 435.

[113] Id. at 434.

[114] Id.

[115] Id. at 435.

[116] Id.

[117] See id.

[118] The Kentucky legislature has already attempted to create separate classes of voters. Ky. Rev. Stat. Ann. § 117.088 (West, Westlaw current through 2015 regular session). This statute allows cities of a certain size to authorize in-person early voting for blind and visually impaired voters. While the existence of this statute likely does not create an affirmative duty for the legislature to enact early voting for everyone, it is likely that the statute is unconstitutional under Obama for America.

[119] See Michael Cooper, Fact-Checkers Howl, but Campaigns Seem Attached to Dishonest Ads, N.Y. Times, Sept. 1, 2012, at A14, http://www.nytimes.com/2012/09/01/us/politics/fact-checkers-howl-but-both-sides-cling-to-false-ads.html?_r=0.

[120] Id.

[121] Id.

[122] Id.

[123] Id.

[124] Bill Adaire, PolitiFact Wins Pulitzer, PolitiFact.com (Apr. 20, 2009, 6:29 PM), http://www.politifact.com/truth-o-meter/article/2009/apr/20/politifact-wins-pulitzer/.

[125] Id.

[126] PunditFact, PolitiFact.com, http://www.politifact.com/punditfact/article/ (last updated Nov. 15, 2015).

[127] Amy Gahran, Debates, Facts and Live Tweeting: How Politifact and NPR Do It, Poynter (Oct. 8, 2008, 2:10 PM) http://www.poynter.org/news/91955/debates-facts-and-live-tweeting-how-politifact-and-npr-do-it/.

[128] Id.

[129] Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).

[130] E. Ill. Univ., Presidential Campaigns: Packaging the Presidents, http://www.eiu.edu/eiutps/campaigns.php (last visited Mar. 22, 2015).

[131] Rickert v. State Pub. Disclosure Comm'n, 168 P.3d 826, 831-32 (Wash. 2007).

On a Path to Autonomy: Death With Dignity Paves the Way

Article | 104 KY. L. J. ONLINE 35 | November 12, 2015

Joseph J. Sherman [1]

Introduction

In early October 2014, Brittany Maynard made headlines when she announced her intention to end her own life in response to her cancer diagnosis.[2] Maynard was a California woman who was diagnosed with terminal glioblastoma,[3] which is a type of highly malignant brain tumor.[4] But because California prohibits physician-assisted death (“PAD”), she and her family made the difficult decision to move to Oregon, where she could legally seek such medical care.[5] On November 1, 2014, Maynard carried out her plan to end her own life by taking a lethal dose of barbiturates prescribed by her doctor.[6] Her choice to end her own life, rather than to let her illness take its natural course, has generated a great deal of controversy.[7] Is it beneficent to promote an early death for the terminally ill to prevent pain and suffering? Do we overextend our role in medicine when death becomes a prescription? What implications does PAD have on the future of end-of-life care?This controversy may be partially fueled by a misunderstanding of the legal framework surrounding PAD. “Physician-assisted [death] occurs when a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act . . . .”[8] This definition is distinct from the refusal of life-saving medical care, which the United States Supreme Court has recognized as a liberty interest protected by the Constitution.[9] The Court has declined to recognize suicide as a liberty interest, holding state bans on PAD to be constitutional as long as they neither infringe on citizens’ fundamental rights nor involve suspect classifications under the Equal Protection Clause of the Fourteenth Amendment.[10]Jurisprudence around the issue of PAD has left the states to decide for themselves whether to legalize the practice. However, many people, even medical experts, do not have a clear enough grasp of jurisprudence on this subject to make an informed argument in favor of or against legalization of PAD. This note elucidates the major jurisprudence surrounding the right to refuse medical treatment, physician-assisted death, and the Oregon Death With Dignity Act. First, it will provide background on Supreme Court rulings on end-of-life issues, noting the contrived distinction between the Court’s understanding of refusal of medical treatment and its understanding of PAD. Second, it will discuss the different paths some states have taken to legalize PAD and objections others have had to its application. Third, it will analyze annually collected data on the Oregon Death With Dignity Act and demonstrate that both the Supreme Court’s analysis and other popular criticisms of PAD are misguided. Finally, this note will conclude by suggesting ways the states could encourage development in this area of the law.

I. Supreme Court Foundation: the Right to Refuse Medical Treatment and Physician-Assisted Death

There is a significant difference between the Supreme Court’s discussion of the right to refuse medical treatment and its discussion of PAD. Broadly speaking, in the case of the right to refuse medical treatment, the patient is allowed to die of whatever disease from which they suffer; medicine is not the cause of death. However, in the case of PAD, the medicine is actually the cause of death. In grappling with the distinction the Court draws, it will become clear that the distinction lacks coherence.

A. SCOTUS and the Right to Refuse Medical Treatment

The Supreme Court began addressing the right to refuse medical treatment in 1905 when it decided Jacobson v. Massachusetts.[11] In that case, a man challenged a Cambridge ordinance that mandated vaccination against smallpox in response to the growing threat of epidemic.[12] He argued that the ordinance violated his Fourteenth Amendment liberty interest.[13] The Supreme Court held that the ordinance fell within the state’s police power to protect public health.[14]The most significant decision on the right to refuse medical treatment came in 1990 in Cruzan v. Director, Missouri Department of Health.[15] The case involved a young woman, Nancy Cruzan, whose brain was without oxygen for twelve to fourteen minutes while she waited for paramedics after an automobile accident.[16] She entered a persistent vegetative state, and it soon became clear that she would never regain full mental capacity.[17] Cruzan’s family sought to have the feeding and hydration procedures terminated, but hospital employees would not honor their request without a court order.[18] The trial court granted their request on the basis that Cruzan had a fundamental right to refuse the withdrawal of “death prolonging procedures.”[19] However, the Missouri Attorney General appealed the decision, and the Missouri Supreme Court reversed the trial court decision, denying the family’s request.[20] The court required Cruzan’s family to show by “clear and convincing evidence” that removal of feeding and hydration procedures would have been consistent with Cruzan’s wishes.[21] On appeal to the U.S. Supreme Court, the issue was whether the Constitution forbade Missouri from imposing the “clear and convincing evidence” standard.[22] Because Cruzan was an incompetent patient,[23] the Court was comfortable affirming the Missouri Supreme Court’s requirement of clear and convincing evidence that Nancy Cruzan would have wished to cease medical treatment.[24] A living will or even testimony as to conversations the patient has had about end-of-life care can suffice to establish clear and convincing evidence.[25] This requirement is a way of ensuring individual autonomy, an aspect of respect for persons embodied in the set of medical standards known as the Belmont Report.[26]Ironically, the notion of autonomy undergirding the Court’s ultimate position on the right to refuse medical treatment is undermined in states that do not allow a path for some patients to seek physician-assisted death.[27] This result will be explored in Part III.

B. Physician-Assisted Death

Since Cruzan, the Supreme Court has had the chance to hear cases on PAD. Recall that the American Medical Association said “[p]hysician-assisted [death] occurs when a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act . . . .”[28] This concept is slightly different from the issue in Cruzan, because it involves actually providing the patient with the substance that causes death, rather than removing medical treatment and allowing the patient to die naturally.[29]In Washington v. Glucksberg, the Supreme Court addressed a general Washington statute that prohibited anyone from “knowingly caus[ing] or aid[ing] another person to attempt suicide.”[30] The statute also had the effect of preventing physicians from assisting three terminally ill patients in ending their lives.[31] The patients and physicians were challenging the statute on the grounds that it violated the Due Process Clause of the Fourteenth Amendment.[32] However, the Supreme Court held that the statute did not violate the Constitution.[33] The case was inextricably tied to suicide, and although the Court acknowledged that it assumed a right of competent patients to refuse medical treatment, it was uncomfortable with the idea of granting constitutional protection to suicide under any circumstance.[34] Chief Justice Rehnquist articulated several state interests in opposition to a policy recognizing a right to suicide:

These interests include . . . preserving human life; preventing the serious public-health problem of suicide, especially among [vulnerable populations]; protecting the medical profession’s integrity and ethics and maintaining physicians’ role as their patients’ healers; protecting [vulnerable populations] from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide toward voluntary and perhaps even involuntary euthanasia.[35]

However, this decision does not mean that PAD is unconstitutional. By refusing to strike down Washington’s ban on this practice, this decision recognizes suicide as a public health concern but provides states with the discretion to determine how to address PAD.[36]In Vacco v. Quill, the Supreme Court addressed a New York statute that made it illegal to aid a person in committing suicide or attempting to commit suicide.[37] A group of patients challenged the statute on the grounds that it violated the Equal Protection Clause of the Fourteenth Amendment.[38] They argued that the statute banning assisted suicide had the effect of classifying people into two groups with unequal protection under the law.[39] The Second Circuit found that patients who were attached to life support machines had the option to refuse additional medical treatment to end their lives, while patients who were not attached to life support machines lacked the option to end their lives.[40] The Supreme Court ruled that the classification they described was not suspect, and that it deserved rational basis review.[41] Applying that standard, the Court held that there was a legitimate interest in distinguishing between suicide and refusal of medical treatment.[42] That distinction was based on the causal factor: does the patient die from the disease or the medicine?[43] This decision protects the integrity of the medical profession, one of the state interests mentioned in Glucksberg as well.[44]In upholding two state bans on PAD, the Supreme Court did not decide that the practice was unconstitutional. It merely left the question open for states to decide for themselves whether to ban PAD or to legalize it. Now that the Supreme Court has made these distinctions, states must ask themselves where to go from here.

II. Different Paths to the Same Destination: Legalizing PAD

A. States That Have Legalized PAD

There are two states that legalized PAD through voter initiatives. In 1994, Oregon voters passed an initiative, the Oregon Death With Dignity Act (“ODWDA”), making it the first state in the United States to legalize PAD.[45] In 2008, Washington became the second state to endorse PAD by voter initiative.[46] The ODWDA has a number of safeguards in place to protect against abuse. Those who use the law must be at least eighteen years old;[47] they must be terminally ill, which means they have less than six months to live;[48] they must be capable of communication;[49] and they must not be suffering from any psychiatric disorder, including depression.[50] In addition, they must meet residency requirements.[51] Notably, they must also be able to administer and swallow the lethal medication themselves.[52] The physician is not permitted to administer the medication.[53] At the time of Brittany Maynard’s decision, only one state had legalized PAD by legislative act: in 2013, the Vermont legislature passed a bill to protect patient choices at the end of life.[54]In addition, two states have legalized PAD by court ruling. In the 2009 case of Baxter v. Montana, the Montana Supreme Court heard the case of a truck driver with leukemia who wanted a prescription for medication that would end his life.[55] Montana’s homicide statute forbade “knowingly caus[ing] the death of another human being,” and there was concern that the physician would be implicated for knowing the patient would use the medication for the purpose of ending his life.[56] However, Montana also has a consent statute on the books that allows the use of a consent defense if the victim consented to whatever the charged offense may be.[57] The court ruled that the consent statute should apply rather than permitting an exception to the consent statute on the basis that PAD ran afoul of public policy concerns.[58] Montana’s road to legalizing PAD was unique; not every state could arrive there in the same manner.Finally, a New Mexico state court recently issued an injunction preventing the prosecution of physicians who facilitate the end of life in competent, terminally ill patients.[59] The court based its decision on a state constitutional provision guaranteeing its citizens the rights of “enjoying . . . life and liberty . . . and of seeking and obtaining safety and happiness.”[60] The court “[could not] envision a right more fundamental, more private or more integral to the liberty, safety and happiness of . . . New Mexican[s] than the right of a competent, terminally ill patient to choose aid in dying.”[61] After declaring aid in dying a fundamental right under the state constitution, the court subjected the statutory ban on assisted suicide to strict scrutiny, ultimately striking it down.[62]

B. SCOTUS Inadvertently Provides a Shield Against Popular Criticisms

Shortly after the Glucksberg and Vacco cases, and after the passage of the ODWDA, a flurry of law review articles were written criticizing autonomy as a justification for allowing physicians to assist the terminally ill in dying.[63] In essence, they argued (1) that Americans were so invested in the value of individual autonomy that no state could ever hope to regulate PAD,[64] (2) that physicians and family members would coerce the vulnerable populations into availing themselves of Death With Dignity laws,[65] and (3) that those vulnerable populations would disproportionately avail themselves of Death With Dignity laws because of inadequate medical care, in addition to many other pressures.[66]The American Medical Association expressly disapproves of PAD, arguing that it is “fundamentally incompatible with the physician’s role as healer . . . .”[67] But the physician’s role as a healer is ethically complex. The basic ethical principles of respect for persons,[68] beneficence,[69] and justice[70] articulated in the Belmont Report are not blackletter legal rules, but abstract concepts that bend and conflict with one another. Some medical professionals argue that the Death With Dignity movement is a “slippery slope,” pointing to other developed nations where they say the movement has gone awry.[71] In Holland and Belgium, for example, certain organizations apparently provide euthanasia to patients with clinical depression and no terminal physical illness.[72]It is erroneous to suggest that outright euthanasia programs could exist in the legal framework of the United States. The Supreme Court has time and again recognized the interest of states in preserving human life.[73] When weighing a citizen’s liberty interests, courts are also likely to recognize a state’s “legitimate interest[] in . . . protecting vulnerable persons.”[74] These government interests can only be overcome when there is a terminal illness and medical care is futile. The United States has only been willing to allow PAD in cases where death is already imminent, and that reality is unlikely to change soon. Fears of a slippery slope associated with legalizing PAD may be keeping states from joining the company of Oregon, Washington, and Vermont. Americans sometimes have extremely negative reactions to depression-related suicide.[75] The prospect of a state law unintentionally leading to depression-related PAD might sound like playing with political fire, but those fears are unfounded.

III. Experimenting with State Policies

A. Can Refusal of Treatment and PAD Be Addressed at the Federal Level?

Amici curiae in the Glucksberg and Vacco cases argued fervently against the Supreme Court’s ultimate decision. A plethora of arguments was given. One such argument was that terminally ill patients denied the choice of physician-assisted dying may be forced to endure horrific pain and suffering and loss of dignity.[76] Another argument was that terminally ill patients denied the option of physician-assisted dying are sometimes forced to experience a violent, lonely, at times gruesome death.[77] This was the basic situation facing Brittany Maynard after her diagnosis with terminal glioblastoma. She faced painful treatments that would have destroyed her quality of life.[78] Since she was young and healthy, she also faced the prospect that her body would linger on while her glioblastoma destroyed her mind, and her family would have to watch that happen.[79] Amici for respondents in Glucksberg and Vacco also argued that terminally ill patients denied the option of physician-assisted dying may be forced to rely on family members to assist in hastening death.[80] In addition, amici were concerned that terminally ill patients denied the option of physician-assisted dying sometimes fail in their attempts to hasten death, with tragic results.[81] Maynard’s family found an alternative, though not painless, solution. To show respect for Maynard’s autonomy, they uprooted themselves from their California home and navigated an unfamiliar state legal system to secure the care Maynard needed, all the while grappling with Maynard’s prognosis.[82]Amici also argued that the distinction between refusal of medical treatment and PAD was without meaning and irrational.[83] They pointed to the Second Circuit’s reasoning on the matter:

Withdrawal of life support requires physicians or those acting at their direction physically to remove equipment and, often, to administer palliative drugs which may themselves contribute to death. The ending of life by these means is nothing more nor less than assisted suicide. It simply cannot be said that those mentally competent, terminally-ill persons who seek to hasten death but whose treatment does not include life support are treated equally.[84]

In this passage, Judge Calabresi emphasizes the deliberate actions a physician must take in order to carry out a patient’s wishes to remove life-sustaining medical treatment. At best, the argument that removal of treatment allows a patient’s condition to cause death, and thus, that the physician has nothing to do with the patient’s death, is very weak. Indeed, the Supreme Court proposes that a physician is not acting to bring about the death of the patient in the case of refusal of life-saving treatment, and that only the patient’s condition actually causes death. “[D]eath which occurs after the removal of life sustaining systems is from natural causes . . . .”[85] But is a causation-based distinction between these two doctrines a good distinction to make? Are there other ways to conceive of the distinction? If so, do we have enough information to do it?The Supreme Court’s distinction between these two doctrines is based on causation. It places importance on the fact that refusal of medical treatment places cause of death by the patient’s disease, but PAD makes the physician’s act the cause of death.[86] However, the Court could have chosen to place larger emphasis on the issue of certainty. Based on the annual report published by the Oregon Public Health Division, it appears that, while death by disease is certain to occur when terminal patients on life support choose to remove life support, death by medication is not certain to occur when doctors prescribe lethal medication to terminal patients.[87]It remains unclear exactly what the Supreme Court would do with PAD jurisprudence if it abandoned the distinction between PAD and the right to refuse medical treatment. Indeed, doing away with the distinction might actually prove unfavorable to PAD advocates. Recall what Judge Calabresi said about the two practices: “[t]he ending of life by these means is nothing more nor less than assisted suicide.”[88] If the Supreme Court conceived of both practices as suicide, its prior precedents suggest that it would find no constitutionally protected interest even in the right to refuse medical treatment. However, that would only be true if the Supreme Court also continued to use a rather broad conception of “suicide” as well.A Gallup poll indicates that Americans’ conception of PAD changes drastically depending on the language used to discuss it.[89] When described as “[a]ssist[ing] the patient to commit suicide,” only 51% of Americans think it should be allowed, and 45% of Americans think it should not be allowed.[90] However, when described as “[e]nd[ing] the patient’s life by some painless means,” 70% of Americans think it should be allowed.[91] The lenses we use to view the concept of PAD, including the lens of language, drastically affect the way we perceive this issue, and the Justices of the Supreme Court are no exception. Something about our conception of “suicide” has to change if the Supreme Court can become capable of addressing the issue in a more nuanced way. Blackletter rules make for a brute force approach to nuanced problems. But, it seems unlikely that the Supreme Court would be willing to revise its approach on these issues anytime soon. The Court’s concerns about coercion against vulnerable populations are not going anywhere, and the Court is probably also concerned about appearing brazen on the matter. In effect, the PAD issue really has been left to the states, and the states must look to one another for guidance. They would be well advised to look to Oregon.

B. Policy Indicators in Oregon

Courts have expressed some concern that PAD will lead to unseemly results for vulnerable populations, including the elderly and the disabled.[92] The ODWDA has been on the books for seventeen years,[93] which is enough time for some meaningful things to begin to be drawn from a policy analysis on the law. The Oregon Public Health Division (“OPHD”) compiles an annual report about the administration of the law,[94] and some of its findings can directly address the concerns that courts continue to articulate. While the OPHD would do well to collect more information on patient vulnerability, such as the patient's disability status, relationships, medical care, and whether someone has to make medical decisions on behalf of the patient, the OPHD has collected data on a number of factors that demonstrate what kind of patients avail themselves of the ODWDA.[95] The majority of people using the ODWDA law reported end-of-life concerns such as loss of autonomy (91.5%), being less able to engage in activities that make life enjoyable (88.7%), and loss of dignity (79.3%).[96] Fewer people reported concerns about being a burden on family (40.0%), and very few reported concerns about the financial implications of treatment (only 3.2%).[97] These data do not seem to be representative of an exploited population. Most of the people who seem to avail themselves of the ODWDA are well educated, not undereducated.[98] It is also persuasive that, out of the 1327 people who have used the ODWDA, only 859, or 64.7%, have ended their lives using the prescribed medication.[99] This may be one of the more unintuitive results of ODWDA: the number of people who have actually used barbiturates to end their lives under the ODWDA represent a surprisingly low percentage of the law’s beneficiaries. It decreases the credibility of the suggestion that PAD entails physicians causing the death of their patients.With these statistics in mind, the concerns legal scholars had about PAD in 1998 no longer pose much cause for concern. Vulnerable populations did not disproportionately avail themselves of the ODWDA; rather, the exact opposite happened.[100] Since vulnerable populations did not disproportionately avail themselves of the ODWDA, the argument that physicians and family members will coerce vulnerable populations into utilizing the ODWDA also seems less convincing.[101] Critics also argued that Americans’ preference for individual autonomy would make it impossible to regulate PAD in any meaningful way.[102] To the contrary, Oregon has been doing it successfully for more than a decade.The Supreme Court reasons that PAD cases are distinguishable from cases about refusing medical treatment because when patients refuse life-saving treatment, their disease kills them, but when a physician prescribes medication to assist patients in committing suicide, prescribed medication kills them. Yet, in more than one-third of Oregon cases, when a physician prescribes lethal medication to a patient, the patient’s disease is still the cause of death. This result is illustrative of a realization that the American justice system contemplates end-of-life issues in fundamentally the wrong way.When terminally ill patients seek a prescription of lethal medication, they are not merely receiving the assurance of a peaceful end of life. Rather, these patients are being given something precious that they lost when they were first diagnosed with their terminal illness—their autonomy. In their amicus brief in Vacco, Americans for Death With Dignity and the Death With Dignity Education Center said, “When we enter a hospital for the last time, we may have the strength, and technically, the legal right to end our lives if we wish. But once in the medical system, we often lose the ability to help ourselves.”[103]

C. Lessons Learned in California

California’s absence of Death With Dignity laws led to Brittany Maynard’s difficult choice to leave her home state and resettle in Oregon.[104] After international attention was focused on the process she underwent to end her life in the manner she chose, California appears to have learned its lesson. A bill originating in the California Senate, called the End of Life Option Act,[105] reached the desk of Gov. Jerry Brown and was signed on October 5, 2015.[106] In his letter to the members of the California legislature, he invoked Brittany Maynard’s memory.[107] He also noted that, in making his decision to sign the bill into law, he considered “heartfelt pleas” from Maynard’s family and Archbishop Desmond Tutu, as well as advice from a Catholic Bishop, two of his own doctors, former classmates, and friends.[108] Clearly, PAD is an uncomfortable issue to think about deeply, but we can make the right decision as a community when we have sufficient information at our disposal.

Conclusion

The Supreme Court is not impervious to a simple shortage of available information. Everyday Americans are not the only ones confused about the legal issues surrounding end-of-life care. For now, the Supreme Court has drawn a causation-based distinction between the refusal of medical treatment and PAD, which has the effect of allowing patients who rely on life-sustaining care to die, but barring terminally ill patients from doing the same, even when they are in great pain. However, statistical information about the utilization of PAD across different states might provide invaluable quantitative information about causation. If Oregonians are not unique, and the rest of the country presents a similar pattern with regard to patient choices, the Supreme Court may have to revisit its distinction between PAD and refusal of medical treatment. In cases involving the removal of life-sustaining care, the Supreme Court has emphasized autonomy. The next time a PAD case reaches the Supreme Court, we should hope that there is enough quantitative evidence to show that the same emphasis on autonomy is due for the terminally ill. In the wake of Brittany Maynard’s decision, states would be wise to reconsider the benefits of PAD. Currently, most states inadvertently send a grim message to their terminally ill residents: “leave or you will suffer the consequences.” California has learned the hard way that no state should send that message.

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[1] J.D. Candidate 2016, University of Kentucky College of Law. Joseph Sherman also serves on the Kentucky Law Journal Editorial Board as the Online Content Editor.

[2] See, e.g., Brandon Griggs, Dying Young: Why Brittany Maynard’s Story Resonates, CNN (Oct. 14, 2014, 4:28 PM), http://www.cnn.com/2014/10/08/living/death-dignity-brittany-maynard/.

[3] Id.; Nicole Weisensee Egan, Terminally Ill Woman Brittany Maynard Has Ended Her Own Life, People (Nov. 2, 2014, 7:35 PM), http://www.people.com/article/brittany-maynard-died-terminal-brain-cancer.

[4] Brain Tumor Information, Am. Brain Tumor Ass’n, http://www.abta.org/brain-tumor-information/types-of-tumors/glioblastoma.html (last visited Mar. 20, 2015).

[5] Video: Brittany Maynard’s Legacy: One Year Later, The Brittany Maynard Fund, http://www.thebrittanyfund.org/.

[6] Egan, supra note 3; Eyder Peralta, As Planned, Right-to-Die Advocate Brittany Maynard Ends Her Life, NPR: The Two-Way (Nov. 3, 2014, 8:27 AM), http://www.npr.org/blogs/thetwo-way/2014/11/03/361094919/as-planned-right-to-die-advocate-brittany-maynard-ends-her-life.

[7] See Egan, supra note 3; Peralta, supra note 6.

[8] AMA Council on Ethical and Judicial Affairs, Formal Op. 2.211 (1994), http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2211.page (discussing Physician-Assisted Death).

[9] See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 279 (1990).

[10] Vacco v. Quill, 521 U.S. 793, 799 (1997); Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[11] See Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905).

[12] Id. at 12-14.

[13] Id. at 14.

[14] Id. at 35, 39.

[15] See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 279 (1990).

[16] See id. at 266.

[17] Id. at 266-67. At this point, the Cruzan’s situation could be referred to as a case of “scientific futility”: treatment cannot achieve the medical result expected by the family, which is a full recovery. See Barbara A. Noah, Politicizing the End of Life: Lessons from the Schiavo Controversy, 59 U. Miami L. Rev. 107, 128 (2004). “Ethical futility” occurs when treatment actually no longer serves the underlying interests of the patient. The latter of these situations is more difficult to identify and address when the patient in incompetent. Id. For a discussion of the differences between scientific and ethical futility in the case of end-of-life case for Terry Schiavo, see id. at 126-31 (2004).

[18] Cruzan, 497 U.S. at 267.

[19] Id. at 268 (internal quotation marks omitted).

[20] See id. at 261, 268, 336.

[21] Id. at 285.

[22] Id. at 269.

[23] Id. at 265. The Supreme Court assumed without deciding that there was a constitutionally protected liberty interest in the refusal of medical treatment in cases involving competent patients. Id. at 279. However, the Court did not decide that incompetent patients had a similar unqualified right. Because the wishes of incompetent patients cannot readily be determined absent some outside evidence, it is difficult to respect the autonomy of an incompetent patient.

[24] See id. at 282.

[25] See id. at 268-69.

[26] See Nat’l Comm’n for the Prot. of Human Subjects of Biomedical and Behavioral Research, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research 4 (1978) (finding that respect for a person’s autonomy is a basic ethical conviction), http://videocast.nih.gov/pdf/ohrp_belmont_report.pdf [hereinafter “The Belmont Report”]. The Belmont Report was developed in 1974 by the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research to identify basic ethical principles that should guide the conduct of research involving human subjects. Mary Bernadette Ott & Gary Yingling, Guide to Good Clinical Practice ¶ 840 (2013), Westlaw CLINPRAC. It relied, in part, on the Nuremberg Code, which was written by Nuremberg Trial judges after World War II in response to Nazi atrocities committed during the war. See id. Although the Belmont Report was written to address ethical principles with respect to research on human subjects, modern medical practitioners hold its ethical principles dear even in general practice, even where practice might not connote “research” in the minds of most laypersons. Perhaps this is because the federal definition of “research” is quite broad. According to the Code of Federal Regulations, “[r]esearch means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” 45 C.F.R. § 46.102(d) (2015). “Activities which meet this definition constitute research for purposes of this policy, whether or not they are conducted or supported under a program which is considered research for other purposes. For example, some demonstration and service programs may include research activities.” Id. Indeed, regardless of whether the American Medical Association considers general practice to be “research,” it clearly and explicitly respects the concept of informed consent, which is an aspect of respect for persons, one of the three ethical principles articulated in the Belmont Report. See Ott & Yingling, supra. The Belmont Report is not blackletter law, but rather is a set of professional standards, originally intended only for research, but given broader application professionally. See id.

[27] See The Belmont Report, supra note 26, at 4-6.; infra Part III.B.

[28] AMA Council on Ethical and Judicial Affairs, Formal Op. 2.211 (1994), http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2211.page.

[29] Compare id., with Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 279 (1990).

[30] Washington v. Glucksberg, 521 U.S. 702, 706-07 (1997).

[31] Id. at 707.

[32] Id. at 708-09.

[33] Id. at 709.

[34] See id. at 723 (citing Cruzan, 497 U.S. at 279).

[35] Glucksberg, 521 U.S. at 703-704. Vulnerable populations in this case include “the young, the elderly, and those suffering from untreated pain or from depression or other mental disorders,” as well as “the poor, . . . disabled persons, [and] the terminally ill . . . .” Id.

[36] See id. at 730, 735.

[37] Vacco v. Quill, 521 U.S. 793, 796 (1997).

[38] Id. at 793.

[39] See id. at 798, 800.

[40] Id. at 798.

[41] Id. at 800-01.

[42] Id.

[43] Id. at 801.

[44] Id. at 808-09 (citing Washington v. Glucksberg, 521 U.S. 702, 703-04 (1997)).

[45] See Or. Rev. Stat. §§ 127.800-890, 127.895, 127.897 (Westlaw, current with 2015 Reg. Sess. legislation effective through Oct. 5, 2015), https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ors.aspx.

[46] Wash. Rev. Code Ann. §§ 70.245.010-220, 70.245.901-904 (Westlaw, current with all laws from the 2015 Regular Session and 2015 1st, 2nd, and 3rd Special Sessions), http://apps.leg.wa.gov/rcw/default.aspx?cite=70.245&full=true. Washington’s Death With Dignity statute was written to be substantially similar to the ODWDA. Anne Marie Su, Physician Assisted Suicide: Debunking the Myths Surrounding the Elderly, Poor, and Disabled, 10 Hastings Race & Poverty L.J. 145, 155-56 (2013).

[47] Or. Rev. Stat. § 127.805.

[48] Id. at § 127.800-805.

[49] Id. Communication does not necessarily entail speaking. As long as the patients can communicate in some way, the law is satisfied. Id.

[50] Id. at § 127.825.

[51] Id. at § 127.860. Only Oregon residents can avail themselves of the ODWDA. Residency does not require living in Oregon for any particular duration but does entail verification by driver’s license, lease of apartment or proof of home ownership, voter registration, or payment of taxes. Id.

[52] See id. at §§ 127.815, 127.880.

[53] Id. at § 127.880.

[54] Vt. Stat. Ann. tit. 18, §§ 5281-92 (Westlaw, current through the First Session of the 2015-2016 Vermont General Assembly), http://legislature.vermont.gov/assets/Documents/2014/Docs/BILLS/S-0077/S-0077%20As%20Passed%20by%20Both%20House%20and%20Senate%20(Unofficial).pdf. The bill was signed into law on May 20, 2013, but many substantive portions of the law will not take effect until July 1, 2016. Id. Vermont’s PAD law was also written to be similar to the ODWDA; however, its statutory mandates are set to expire after three years, leaving in their place professional medical standards. Kathryn L. Tucker, Vermont’s Patient Choice at End of Life Act: A Historic “Next Generation” Law Governing Aid in Dying, 38 Vt. L. Rev. 687, 688 (2014). California has now also legalized PAD by legislative act. See infra Part III.C.

[55] Baxter v. Montana, 224 P.3d 1211, 1214 (Mont. 2009).

[56] Id. at 1215 (quoting Mont. Code Ann. § 45-5-102 (Westlaw, current through chapters effective July 1, 2015, 2015 session)).

[57] Id.

[58] Id. at 1218-22. Although the majority opinion based its decision on statutory interpretation, the concurrence also made an argument based on a state constitutional law provision that respects the right of all humans to individual dignity. Id. at 1227-33 (Nelson, J., concurring).

[59] Morris v. Brandenberg, 2014 N.M. Dist. Ct. 2909U, ¶ PP, http://agoodgoodbye.com/wp-content/uploads/2014/01/199446010-Physician-aid-in-dying-Ruling.pdf; see also Phil Milford, Right to Die with Doctor’s Help Affirmed in New Mexico, Bloomberg Business (Jan. 14, 2014, 1:33 PM), http://www.bloomberg.com/news/articles/2014-01-14/right-to-die-with-doctor-s-help-affirmed-in-new-mexico.

[60] Morris, 2014 N.M. Dist. Ct., ¶ EE.

[61] Id. ¶ HH.

[62] Id. ¶¶ KK, NN, PP.

[63] See, e.g., Patrick M. Curran, Jr., Note, Regulating Death: Oregon’s Death With Dignity Act and the Legalization of Physician-Assisted Suicide, 86 Geo. L.J. 725, 725 (1998).

[64] Id. at 734-36.

[65] Id. at 739-41.

[66] Id. at 741-42.

[67] AMA Council on Ethical and Judicial Affairs, supra note 8.

[68] The Belmont Report, supra note 26, at 4-6.

[69] Id. at 6-8.

[70] Id. at 8-10.

[71] See, e.g., Ira Byock, Doctor-Assisted Suicide Is Unethical and Dangerous, N.Y. Times: Room for Debate (Sept. 4, 2015, 2:25 PM), http://www.nytimes.com/roomfordebate/2014/10/06/expanding-the-right-to-die/doctor-assisted-suicide-is-unethical-and-dangerous.

[72] Id.

[73] E.g., Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 280 (1990); Gonzales v. Carhart, 550 U.S. 124, 146 (2007) (reaffirming the state’s interest in the preservation of fetal life articulated in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 838 (1992), and Roe v. Wade, 410 U.S. 113, 163-64 (1973)).

[74] E.g., Vacco, 521 U.S. at 798. The Supreme Court has found that individuals in this class include the elderly or the mentally or physically disabled. Washington v. Glucksberg, 521 U.S. 702, 704 (1997).

[75] See, e.g., Henry Rollins, Henry Rollins: Fuck Suicide, L.A. Weekly Music (Aug. 21, 2014), http://www.laweekly.com/music/henry-rollins-fuck-suicide-5016770. (responding to the suicide death of Robin Williams).

[76] Brief for Surviving Family Members in Support of Physician-Assisted Dying as Amici Curiae Supporting Respondents at 9-11, Washington v. Glucksberg, 521 U.S. 702 (1997) (Nos. 96-110, 95-1858), 1996 WL 722032.

[77] Id. at 12-15.

[78] Brittany Maynard, My Right to Death With Dignity at 29, CNN Opinion (Nov. 2, 2014, 10:44 PM), http://www.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/.

[79] Id.

[80] Brief for Surviving Family Members in Support of Physician-Assisted Dying, supra note 77, at 16-22.

[81] Id. at 22-24.

[82] See About Brittany Maynard, The Brittany Maynard Fund, http://www.thebrittanyfund.org/about/ (last visited Mar. 23, 2015).

[83] Brief for Surviving Family Members in Support of Physician-Assisted Dying, supra note 77, at 28-29.

[84] Quill v. Vacco, 80 F.3d 716, 729 (2d Cir. 1996), rev’d, 521 U.S. 793 (1997) (emphasis added).

[85] Vacco, 521 U.S. at 801 (quoting In re Colyer, 660 P.2d 738, 743 (Wash. 1983)).

[86] Physicians are not allowed to help patients take the lethal medication. Patients must be capable of doing it themselves. See infra, Part III.B.

[87] See infra, Part III.B.

[88] Vacco, 80 F.3d at 729.

[89] Lydia Saad, U.S. Support for Euthanasia Hinges on How It’s Described, Gallup: Politics (May 29, 2013), http://www.gallup.com/poll/162815/support-euthanasia-hinges-described.aspx.

[90] Id.

[91] Id.

[92] See, e.g., Washington v. Glucksberg, 521 U.S. 702, 731-32 (1997).

[93] Or. Pub. Health Div., Oregon’s Death With Dignity Act--2014 (2015), https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year17.pdf.

[94] Id.

[95] See generally Or. Pub. Health Div., supra note 94. In 2014, 105 people ended their lives using the ODWDA. Id. at 1. Of those people, 95.2% were white, 45.7% were married at their time of death, and 47.6% had a baccalaureate degree or higher, compared with 5.7% who had less than a high school diploma. Id. at 4. Since ODWDA was enacted, 859 people ended their lives using the law. Id. at 2. Of those people, 97.1% were white and 46.1% were married at their time of death. Id. at 4. Moreover, 45.9% had a baccalaureate degree or higher, compared with 6.0% who had less than a high school diploma, and 72.1% had at least some college education. See id. These demographics do not seem to disproportionately represent a vulnerable population. In fact, the demographics seems to indicate a certain degree of affluence among those availing themselves of the law.

[96] Id. at 5.

[97] Id.

[98] See id. (reporting that, since the ODWDA went into effect, of the patients who used the law, 45.9% had a baccalaureate degree or higher, compared with 6.0% who had less than a high school diploma, and 72.1% had at least some college education.).

[99] See id. at 2.

[100] Compare Curran, supra note 64, at 741-42 (expressing concern that the ODWDA would disproportionately impact minorities, the disabled, and women), with Or. Pub. Health Div., supra note 94, at 4-5 (suggesting that the majority of those taking advantage of the law are well-educated and white).

[101] See Curran, supra note 64, at 739-40.

[102] Id. at 734-36.

[103] Brief for Americans for Death With Dignity and the Death With Dignity Education Center as Amici Curiae Supporting Respondents at 18-19, Vacco v. Quill, 521 U.S. 793 (1997) (No. 95-1858, 96-110), 1996 WL 709335.

[104] About Brittany Maynard, supra note 83.

[105] S.B. 128, 2015 Gen. Assemb., Reg. Sess. (Cal. 2015), https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB128.

[106] See Letter from Edmund G. Brown, Jr., Governor of Cal., to the Members of the Cal. State Assemb. (Oct. 5, 2015), https://www.gov.ca.gov/docs/ABX2_15_Signing_Message.pdf.

[107] Id.

[108] Id.

A Fare Deal: The Reasonable Regulation of Ridesharing

Note | 104 KY. L. J. ONLINE 17 | Sept. 28, 2015

Dylan Merrill[1]

Introduction

On New Year’s Eve 2013, Sayad Muzzafar was driving for the ridesharing company Uber when he struck a mother and her two children while they were crossing the street. That night, one of the children, a six year-old girl, died from her injuries.[2] The Liu family later sued the company, but Uber distanced itself from the accident, arguing it was not liable because Mr. Muzzafar did not have an Uber passenger in his vehicle when he struck the pedestrians.[3] At the time of the accident, policymakers had not implemented regulations for the new rideshare industry, further frustrating the goal of determining who in fact is liable in these circumstances.[4]This sad situation is only one example of how legal grey areas are cloaking ridesharing in uncertainty, creating a dire need for legal and regulatory certainty. However, since the law has historically struggled to keep pace with technological advances, these kinds of legal grey areas and the problems they pose are not anything new. For example, in 1863, the Supreme Court of the United States was faced with the issue of how to regulate steam engines and railroads according to laws that were passed long before the inventions became ubiquitous.[5] Justice Samuel Freeman Miller, writing for the majority, marveled at the complexity of bringing new technologies into the fold:Perhaps the most remarkable invention of modern times, in the influence which it has had, and is yet to have, on the affairs of the world . . . is the railroad system. It is not strange, then, that when we are called to construe a statute relating to this class of subjects, passed before a steam engine or railroad was thought of . . . we should be met by difficulties of the gravest character.[6]Implicit in the Court’s opinion is an insight into the dilemma posed by the creation of transformative technologies. On one hand, technological innovations carry an enormous promise: the potential to transform society for the better. At the same time, even the most promising inventions can bring with them serious threats to the safety of the community. Therefore, there is danger in not regulating a new technology to ensure its safe operation, just as there is danger in regulating it so much that the regulation restricts economic growth.While this language was written decades before the invention of the automobile, the words still ring true today. In the ridesharing context, there are two weighty public policy interests at play. First and foremost, as demonstrated above, there are legitimate public safety concerns inherent in a transportation service like ridesharing. Yet, this must be viewed through an economic lens as well. After all, ridesharing companies offer an innovative service that helps distribute scarce resources by providing a low-cost alternative to traditional taxis. This service benefits customers, and it also creates jobs. Therefore, the fairest and most effective regulatory scheme will carefully balance these two competing policy objectives.This balancing, however, is not easily done. Should ridesharing companies like Uber and Lyft be subject to the same standards as taxicab companies, such as Yellow Cab? How can regulators and legislators put in place rules that promote public safety without undermining the competitive advantage enjoyed by ridesharing? This Note proposes an answer to these difficult questions. Part I asks the question of whether ridesharing should be regulated, and submits that doing so would not only better protect the public, but also shore up the ridesharing business model. Part II lays out the regulatory landscape of ridesharing, focusing on the pressing issue of insurance liability. Ultimately, Part III proposes a roadmap for regulating ridesharing services—one that is fair, practical, and tailored to fit the needs of ridesharing companies, its customers, and the general public.

I. The Need for Ridesharing Regulation

Ridesharing closely resembles the services provided by traditional taxicab companies, although there are important distinctions between the two services. At its most basic, the ridesharing routine is the same as with taxicabs: a customer requests a ride, the driver takes the customer to the destination, and the customer pays for the ride.[7] However, unlike traditional cab services, ridesharing companies do not dispatch drivers, nor do they own the vehicles used to give rides.[8] Furthermore, companies like Uber and Lyft do not employ their drivers or dictate their work schedules, allowing drivers to choose to provide rides as frequently or infrequently as they wish.[9] In essence, these companies self-identify as smartphone application developers that merely license their technology to independent drivers.[10]But the question remains as to whether ridesharing poses risks to consumers and the general public, and if so, how to ensure regulation does not restrict the economic potential of ridesharing. To determine whether ridesharing companies should be regulated, it is useful to examine the impact of such companies, both positive and negative. The foremost benefit such companies provide is a dependable, convenient, and low-cost alternative to traditional taxicabs.[11] Although the competitive advantage of ridesharing has led, at least in part, to a decline in the taxicab industry, ridesharing undeniably gives consumers access to more transportation options.[12] Furthermore, ridesharing has the potential to benefit the general public by combatting widespread transportation and environmental issues such as traffic congestion and pollution.[13]But these economic and social improvements must be considered in light of the potentially harmful effect ridesharing could have on consumers and the general public.[14] Several public policy problems stem from the regulation—or lack thereof—of ridesharing companies, including but not limited to taxation, worker’s rights, licensing, background checks, distracted driving and other safety issues.[15] But perhaps the most pressing issue concerns insurance coverage. There is significant ambiguity regarding who is liable when an accident occurs—the driver or the ridesharing company.[16] If companies like Uber and Lyft are merely smartphone application providers and truly have an indirect involvement in the provision of ridesharing, then their liability for their drivers’ accidents should be minimal.[17] Jurisdictions that have not regulated ridesharing tacitly agree with this argument by allowing ridesharing companies to determine how much insurance—if any—they wish to provide for their drivers. The result is that ridesharing drivers’ liability in the event of an accident depends largely on the whims of their affiliated ridesharing company rather than a standardized and enforceable framework.This regulatory vacuum is dangerous, particularly in the insurance context. A ridesharing company’s commercial insurance covers a driver when the driver’s smartphone application is turned on and there is a customer in the vehicle.[18] However, its insurance does not cover a driver when the application is turned off.[19] In that situation, ridesharing companies argue that the driver is supposed to be covered by his or her personal car insurance.[20] Insurance providers, however, tend to disagree.[21] They consider ridesharing drivers to be involved in commercial activity and thus refuse to let ridesharing drivers use their personal insurance to cover accidents that happen on the job.[22] Insurers have clearly stated that “vehicles used for transporting passengers for a charge” are not covered by personal car insurance policies.[23] Consequently, some insurance providers have actually canceled the policies of customers who drive for Uber and Lyft.[24] And in some instances, insurers have even denied insurance applications based on an applicant’s intent to drive for a ridesharing company.[25] Thus, although ridesharing companies maintain that their drivers are covered by personal car insurance when their smart phone application is turned off, that is often not true.Furthermore, ridesharing drivers run the risk of liability even when their smartphone application is activated.[26] As noted above, drivers are covered by commercial insurance when their smart phone application is on and they are driving customers, but they are not covered by the commercial policy when the application is on and they are not carrying any passengers.[27] Therefore, since personal car insurance does not cover such commercial activity, drivers who are merely seeking customers run the risk of falling into an “insurance gap” in the event of an accident. Such was the case of Syad Muzzafar, the Uber driver who struck and killed Sophia Liu in San Francisco.[28] At the time, the driver was in between passengers but had not yet picked up another customer.[29] As a result, the driver’s insurance policy only provided a maximum of $15,000 to the victim’s family.[30] The company denied any liability for the accident, stating that “[t]he driver in question was not providing services on the Uber system during the time of the accident.”[31] This is only one example of the dire need for insurance standards in the ridesharing industry.Instituting such standards would protect drivers, passengers, and the general public as a whole, and it also has the potential to actually improve the bottom line of ridesharing businesses like Uber and Lyft. The enactment of ridesharing standards will provide regulatory certainty for ridesharing companies, allowing them to continue to grow their companies with less fear of how the government might intervene in the future.[32] This incentive had been demonstrated when ridesharing companies welcome the opportunity to work with local governments toward the regulation of their industry.[33] In turn, such third-party oversight will in theory inspire greater consumer confidence in the safety of ridesharing services.[34] Therefore, the prospect of a win-win-win outcome will incentivize regulators to promptly put in place standards that protect ridesharing companies and those affected by them.

II. Potential Regulatory Frameworks: California and Colorado Case Studies

The law has struggled to keep pace with rapid advance of the ridesharing economy. One reason for this is ridesharing is difficult to regulate, as it exists in a legal gray area.[35] As mentioned above, ridesharing providers are situated somewhere between traditional taxicab companies and smartphone application developers, and thus they have tended to disregard existing laws that are not specifically tailored to ridesharing.[36] Moreover, ridesharing services defy categorization into traditional regulatory frameworks, preventing many governments from developing tailored policy approaches to ridesharing.[37]Some states and municipalities, nevertheless, have begun regulating ridesharing companies. Although Congress has yet to legislate on the issue, some state and local governments have passed legislation or promulgated rules regarding services like Uber and Lyft.[38] The approaches differ greatly. For instance, some jurisdictions have banned most ridesharing services outright.[39] In the Commonwealth of Virginia, for example, ridesharing companies until recently were subject to civil penalties if they continued operating there.[40] In doing so, the state was adhering to its law that requires state authorization for passenger vehicles that are for-hire and it issued cease-and-desist orders to ridesharing companies that continued operations in Virginia.[41] The Department of Motor Vehicles found that, since drivers for companies like Uber get compensation for their services, they are more than just casual carpoolers.[42] Similarly, other state and local governments have suspended the operation of ridesharing services while they devise an appropriate regulatory framework.[43] Several states on the forefront, however, have taken the initiative and passed legislation regulating ridesharing services.[44]

A. California

In 2013, California became the first jurisdiction to legalize ridesharing.[45] Before regulations were put in place, the policy of the California Public Utilities Commission ("CPUC") was to issue fines and cease-and-desist letters to ridesharing companies, but it later allowed the companies to operate on an interim basis while draft regulations were considered.[46] The CPUC ruled that ridesharing services did not accord with any of the three existing regulatory categories: taxicab companies, charter-party carrier services (i.e., livery vehicles), or passenger-stage companies (e.g., airport shuttles).[47] Nevertheless, standards regulating the ridesharing industry were put in place, but they were promulgated under a completely new classification of transportation services called “Transportation Network Companies” (or “TNCs”).[48] According to the CPUC, this new category of services consists of “companies that provide prearranged transportation services for compensation using an online-enabled application (app) or platform to connect passengers with drivers using their personal vehicles.”[49] Ridesharing companies like Uber and Lyft fall under this definition, but traditional taxis and casual carpoolers do not.[50]Under California law, TNCs are subject to five key insurance-related provisions in the new regulations.[51] Perhaps the most important is the requirement that ridesharing companies provide insurance from the moment a driver turns on his or her smartphone application.[52] As noted above, this cuts against the general practice of ridesharing companies, which is to cover their drivers with commercial insurance only when their application is in use and there are passengers in the car.[53] In addition to being responsible for closing this insurance gap, TNCs are required to provide, at a minimum, $1 million in coverage.[54] This requirement lasts from the time a customer is picked up until the passenger has left the vehicle.[55] Drivers for TNCs, however, are also subject to additional insurance regulations. Drivers are responsible for maintaining primary commercial liability insurance coverage of at least $50,000 per person and $100,000 per occurrence of death and personal injury, as well as $30,000 for property damage.[56] In addition, drivers are also required to carry proof of their personal and commercial insurance coverage, and they must be at least twenty-one years of age a year or more of driving experience.[57] Lastly, the regulations call for the expedited review of new insurance policies that are tailored to the needs of TNC drivers.[58] Enforcement of these new regulations was delayed for one year and became subject to review by the CPUC after they were in place for the first year.[59] Although not all ridesharing companies were initially supportive of such regulations, the tide has begun to turn.[60] Notably, ridesharing companies have formed a coalition with insurance providers and government regulators, in order to collaborate on how to best comply with the new ridesharing rules.[61]

B. Colorado

Additionally, the State of Colorado has passed legislation enacting insurance regulations for ridesharing companies.[62] Like the California rules, the legislation puts in place new provisions that are unique to ridesharing companies and also classifies the provisions as “Transportation Network Companies.”[63] The Colorado legislation, however, defined TNCs differently than California’s regulations. Under the Colorado statute, a TNC is a company that “uses a digital network to connect riders to transportation network company drivers for the purpose of providing transportation” and “does not provide taxi service, transportation service arranged through a transportation broker, ridesharing arrangements, . . . or any transportation service over fixed routes at regular intervals.”[64] This definition nevertheless still subjects companies like Uber and Lyft to TNC rules and regulations. At the same time, the legislation exempts TNCs from the regulations imposed on common carriers, contract carriers, and motor carriers.[65] TNCs are also exempt from much of the Colorado Public Utilities Commission’s authority, including its ability to regulate rates.[66] The new legislation, however, does put in place a key regulation: it closes the insurance gap by requiring TNCs to provide commercial insurance coverage once the application is turned on, regardless of whether the driver is carrying a passenger.[67] This emphasis on commercial insurance rather than the driver’s personal policy is notable because, absent such a requirement, insurers would have had to raise rates for all vehicle policies in the state, regardless of whether they were used for ridesharing services.[68]Like California, Colorado requires TNCs to provide a minimum of $1 million in liability coverage.[69] Notably, Uber voluntarily provides $1 million in liability coverage beginning when a driver accepts a trip request.[70] Colorado’s legislation, however, goes further. It requires such coverage whenever the smartphone application is activated, irrespective of whether the driver has been matched with a passenger or is in route to pick one up.[71] This covers a larger portion of the insurance gap than either California’s insurance requirement or Uber’s voluntary commitment, neither of which mandate liability coverage until a passenger is assigned to the driver.[72] In addition, in Colorado, personal insurance policies must cover at least $50,000 per person and $100,000 per occurrence of death and personal injury, as well as $30,000 for property damage.[73] This amount, however, will be the subject of a required state agency study and could be increased in the future.[74] The ridesharing industry reaction to the passage of the legislation was overwhelmingly positive.[75]Although there are differences between California and Colorado’s insurance regulations, both have reclassified ridesharing as a wholly unique service, treating it differently from traditional taxicab providers. Furthermore, both regulatory frameworks agree that ridesharing companies should be responsible for closing the insurance gap. This consensus should not be overlooked as policymakers in other jurisdictions contemplate putting in place ridesharing regulations.

III. Which Regulations Work Best For Ridesharing?

As discussed above, the need for ridesharing standards is clear. Regulation not only protects drivers, passengers, and the general public as a whole, but it also has the potential to actually help the bottom line of ridesharing companies. The more difficult determination is what these regulations should look like.Effective regulation requires legally classifying ridesharing companies as their own unique category of transportation. As understood by states like California and Colorado, it does not make sense to try to regulate ridesharing drivers as if they were taxicabs or livery vehicles.[76] This square-peg-round-hole problem is best solved by developing a completely new classification (i.e., “Transportation Network Companies”) for ridesharing. The definition of a TNC should emphasize that TNCs are neither taxicab companies nor involved in traditional/informal ridesharing, as the Colorado legislature has specifically stated.[77]Furthermore, regulators must close the insurance gap for ridesharing drivers. The surest way of doing so entails, for one, requiring TNCs to provide a minimum amount of $1 million in liability coverage for their drivers.[78] Crucially, this coverage should mirror Colorado’s framework and kick in whenever the smartphone application is activated, irrespective of whether the driver has been matched with a passenger or is in route to pick one up. This will prevent drivers from having to shoulder too much financial risk. Furthermore, by placing more responsibility on TNCs (and therefore less on drivers’ personal policies), it prevents insurers from raising rates for all vehicle policies, regardless of whether they were used for ridesharing services.[79] That said, this arrangement does not work without baseline requirements for ridesharing drivers’ personal insurance policies. State and local governments should follow California’s example and hold drivers responsible for maintaining substantial primary liability insurance coverage.[80] Regulators can help ridesharing drivers comply with this requirement by ensuring expedited review of new insurance policies that are tailored to the needs of TNC drivers.[81] In sum, these insurance fixes will help create a more even distribution of financial risk among ridesharing companies and their drivers. More importantly, these regulations will help ensure that claimants in ridesharing-related actions have a better chance of obtaining full recovery.

IV. Conclusion

By expanding consumer choice and providing an efficient, dependable, and inexpensive alternative to other modes of transportation, ridesharing companies provide a net-benefit to society. At the same time, there are nevertheless dangers that come along with the rise of ridesharing. Governments, then, should not only put in place new ridesharing standards, but also ensure that such regulation does not come at the expense of the viability of the industry. To help achieve this goal, legislators and regulators should focus their efforts on solving pressing policy problems. As a first step, the ridesharing should be classified as a unique service and treated differently than traditional taxicab companies. Other jurisdictions should strongly consider California’s definition of Transportation Network Companies: companies “that provide[] prearranged transportation services for compensation using an online-enabled application (app) or platform to connect passengers with drivers using their personal vehicles.”[82] Furthermore, minimum insurance coverage baselines for companies and their drivers will provide a stronger safety net for those involved in ridesharing-related accidents. Specifically, states should require TNCs to provide at least $1 million in liability coverage for their drivers, and drivers should also need substantial primary liability insurance coverage—at least $50,000 per person and $100,000 per occurrence of death and personal injury. Lastly, ridesharing companies must be required to provide insurance coverage from the moment the smartphone application is turned on so that drivers and accident victims have much fuller legal and financial protection in the event of an accident. With these vital protections in place, we can help the ridesharing industry continue to provide its innovative services while also ensuring they shoulder a fair share of the risk they create. Legislators and policymakers would be wise to adopt this approach as a first—but crucial—step toward the reasonable regulation of ridesharing.

---

[1] J.D. expected, May 2016, University of Kentucky College of Law.

[2] Josh Constine, Uber’s Denial of Liability in Girl’s Death Raises Accident Accountability Question, TechCrunch (Jan. 2, 2014), http://techcrunch.com/2014/01/02/should-car-services-provide-insurance-whenever-their-driver-app-is-open/.

[3] Patrick Hoge, California May Expand Insurance Rules for Uber, Lyft et al., San Francisco Business Times (Mar. 25, 2014, 10:38 AM), http://www.bizjournals.com/sanfrancisco/blog/2014/03/california-insurance-rules-uber-lyft.html?page=all.

[4] Id.

[5] Bridge Proprietors v. Hoboken Co., 68 U.S. 116, 118 (1864).

[6] Id. at 146-47.

[7] Odette Yousef, Ridesharing vs. Taxicabs: The Inside Story, WBEZ (June 5, 2014), http://www.wbez.org/news/rideshare-vs-taxicabs-inside-story-110296.

[8] Id.

[9] Id.

[10] Adam Cecilon, The Insurance Secret that Uber Doesn’t Want You to Know, PolicyGenius Blog (Oct. 8, 2014), http://www.policygenius.com/blog/insurance-secret-uber-doesnt-want-know/.

[11] Peter Schworm, Passengers in the Middle of Ride-sharing Dispute, Boston Globe (Dec. 2, 2014), http://www.bostonglobe.com/metro/2014/12/02/city-council-hearing-discuss-potential-uber-lyft-regulation/a02o5C5DmnSc2LOarCpC9N/story.html.

[12] See, e.g., Megan Garber, After Uber, San Francisco Has Seen a 65% Decline in Cab Use, The Atlantic (Sept. 17, 2014), http://www.theatlantic.com/technology/archive/2014/09/what-uber-is-doing-to-cabs-in-san-francisco-in-1-crazy-chart/380378/.

[13] The Power of Connection: Peer-to-Peer Businesses: Hearing Before H. Comm. On Small Bus., 113th Cong. 6 (2014) (“Th[e] adoption of ride-sharing has the potential to produce large-scale public benefits, including easing traffic congestion and the strain on existing infrastructure, reducing pollution, and fostering a sense of community, all while providing car owners an opportunity to offset the cost of car ownership.”). These benefits are generated simply by people riding together who would otherwise be in separate vehicles. But ridesharing companies also augment these benefits, especially in the context of traffic congestion. For example, Uber developed a smartphone application that draws on a wealth of traffic-related data to help drivers find the most efficient route. Ryan Lawler, Uber Adds Turn-By-Turn Directions to Its Driver App, TechCrunch (Aug. 13, 2014), http://techcrunch.com/2014/08/13/uber-turn-by-turn-directions/.

[14] See generally Molly Cohen & Corey Zehngebot, What’s Old Becomes New: Regulating the Sharing Economy, 58 Boston Bar J. 34 (2014).

[15] Id.; Cecilon, supra note 10.

[16] Cecilon, supra note 10.

[17] Id.

[18] See, e.g., Nairi Hourdajian, Insurance for UberX with Ridesharing, Uber Blog (Feb. 10, 2014), http://blog.uber.com/ridesharinginsurance (detailing Uber’s insurance policy).

[19] Id.

[20] Id.

[21] Cecilon, supra note 10.

[22] Id.

[23] Jon Brooks, Confusion Over Insurance For “Ride-Sharing” Drivers, KQED.org: News Fix (Nov. 19. 2013), http://ww2.kqed.org/news/2013/11/14/who-pays-when-ride-share-driver-crashes.

[24] Jon Brooks, How Many Ride-Share Drivers Are Hiding Status From Insurers?, KQED.org: News Fix (Jan. 21, 2014), http://ww2.kqed.org/news/2014/01/20/ride-sharing-insurance-lyft-uberx-sidecar/.

[25] Id.

[26] Cecilon, supra note 10.

[27] Id.

[28] Marcus Wohlsen, Why Uber’s Fate Could Hinge on This Tragic Accident, Wired.com (Jan. 29, 2014, 6:30 AM), http://wired.com/2014/01/uber-wrongful-death. Uber and Sophia Liu’s family have since settled the lawsuit. Zach Miners, Uber Settles Suit over Girl Killed by Driver, PC World (July 14, 2015, 5:50 PM), http://www.pcworld.com/article/2948492/uber-settles-suit-over-girl-killed-by-driver.html.

[29] Id.

[30] Alexa Vaughn, Uber, Lyft Expanding Driver Insurance Coverage, Seattle Times (Mar. 14, 2014, 3:00 AM), http://seattletimes.com/html/localnews/2023125386_uberinsurancexml.html.

[31] Wohlson, supra note 28.

[32] The Power of Connection: Peer-to-Peer Businesses, supra note 13 at 6.

[33] Johana Bhuiyan, Here Is Where Uber and Lyft Are Facing Regulation Battles in the United States, BuzzFeed, (Dec. 15, 2014, 4:29 PM), http://www.buzzfeed.com/johanabhuiyan/here-is-where-uber-and-lyft-are-facing-regulation-battles-in#.ftEkba0vVA.

[34] Deven R. Desai, The New Steam: On Digitization, Decentralization, and Disruption, 65 Hastings L.J. 1469, 1477-80 (2013).

[35] Cohen & Zehngebot, supra note 14.

[36] Desai, supra note 34, at 1478.

[37] Id.

[38] Curtis Skinner, New Orleans Authorizes Uber—But Not UberX, Business Insider (Sept. 5, 2014, 8:02 AM), http://www.businessinsider.com/r-new-orleans-council-clears-uber-others-to-offer-luxury-online-taxi-service-2014-9.

[39] Sam Frizell, 5 Places Where Uber Is Fighting for Its Life Right Now, Time.com (Dec. 8, 2014), http://time.com/3623241/uber-battles (discussing locales which have banned or severely constrained Uber operations, including Portland, Oregon, and the State of Nevada).

[40] Paul Frisman, Uber's On-demand Car Service, Conn. Office of Legislative Research 4 (June 19, 2014), http://cga.ct.gov/2014/rpt/pdf/2014-R-0173.pdf (discussing different state approaches, including Virginia). Virginia legalized ridesharing earlier this year. Luz Lazo, Uber and Lyft Are Now Legal in Virginia, Washington Post (Feb. 18, 2015), http://www.washingtonpost.com/blogs/dr-gridlock/wp/2015/02/18/uber-and-lyft-are-now-legal-in-virginia/.

[41] Paul Frisman, Uber's On-demand Car Service, Conn. Office of Legislative Research 4 (June 19, 2014), http://cga.ct.gov/2014/rpt/pdf/2014-R-0173.pdf; Lazo, supra note 40.

[42] Paul Frisman, Uber's On-demand Car Service, Conn. Office of Legislative Research 4 (June 19, 2014), http://cga.ct.gov/2014/rpt/pdf/2014-R-0173.pdf.

[43] Paul Frisman, Uber's On-demand Car Service, Conn. Office of Legislative Research 4 (June 19, 2014), http://cga.ct.gov/2014/rpt/pdf/2014-R-0173.pdf; Lazo, supra note 40.

[44] Josh Richman, Uber, Lyft, Sidecar: New Insurance Requirements Approved by California Legislature (Aug. 28, 2014, 6:55 PM PDT), http://www.mercurynews.com/california/ci_26428057/california-senate-approves-new-insurance-requirements-uber-lyft; Andy Vuong, Colorado First to Authorize Lyft and Uber’s Ridesharing Services, Denver Post (June 5, 2014, 5:06:32 PM MDT), http://www.denverpost.com/business/ci_25907057/colorado-first-authorize-lyft-and-ubers-ridesharing-services?source=infinite.

[45] Tomio Geron, California Becomes First State to Regulate Ridesharing Services Lyft, Sidecar, Uber, Forbes (Sept. 19, 2013, 3:40 PM), http://www.forbes.com/sites/tomiogeron/2013/09/19/california-becomes-first-state-to-regulate-ridesharing-services-lyft-sidecar-uberx/.

[46] Id.

[47] Decision 13-09-045 Adopting Rules and Regulations to Protect Safety While Allowing New Entrants to the Transportation Industry, Cal. Pub. Utilities Comm’n 11 (Sept. 23, 2013), http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M077/K192/77192335.PDF.

[48] Geron, supra note 45.

[49] Press Release, California Public Utilities Commission, CPUC Establishes Rules For Transportation Network Companies (Sept. 19, 2013), http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M077/K132/77132276.PDF.

[50] Geron, supra note 45.

[51] Assemb. B. 2293, 2013-2014 Assemb., Reg. Sess. (Cal. 2014), available at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB2293.

[52] See id.

[54] Id.

[55] Id.

[56] Assemb. 2293 §5433(c)(1), 2013-2014 Assemb., Reg. Sess. (Cal. 2014), available at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB2293.

[57] Decision 13-09-045 Adopting Rules and Regulations to Protect Safety While Allowing New Entrants to the Transportation Industry, Cal. Pub. Utilities Comm’n 26-27 (Sept. 23, 2013), http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M077/K192/77192335.PDF.

[58] Id. § 5438.

[59] Geron, supra note 45.

[60] California Welcomes Insurance Coalition for Ride Sharing, Uber Joins In, GovTech.com, (Feb. 10, 2014), http://www.govtech.com/state/California-Welcomes-Insurance-Coalition-for-Ride-Sharing-Uber-Joins-In.html.

[61] Id.

[62] S.B. 14-125, 69th Gen. Assemb., Reg. Sess. (Colo. 2014), available at http://www.leg.state.co.us/clics/clics2014a/csl.nsf/fsbillcont2/70364091166B28FC87257C4300636F6B/$FILE/125_01.pdf.

[63] Id. at 2, 6.

[64] Id. at 6.

[65] Id. at 2.

[66] Id.

[67] Niraj Chokshi, Colorado Passes Nation’s First Law Regulating UberX, Lyft, Washington Post (June 6, 2014), http://www.washingtonpost.com/blogs/govbeat/wp/2014/06/06/colorado-passes-nations-first-law-regulating-uberx-lyft/.

[68] See Vuong, supra note 44.

[69] Kelli Kelty, Colo. Legislative Counsel Staff, Transportation Network Companies, Gen. Assemb. 14-07, Reg. Sess. (2014), available at http://cdn.colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1252019169757&ssbinary=true.

[70] Nairi Hourdajian, Eliminating Ridesharing Insurance Ambiguity, Ins. Note (Mar. 14, 2014), http://insurancenote.net/warranty-entitling-the-holder-to-care-at-home/eliminating-ridesharing-insurance-ambiguity/.

[71] Norma B. Levy & Louis H. Kozloff, Ridesharing Presents Challenges and Opportunities for Insurers, Property Casualty 360º, (Oct. 21, 2014), http://www.propertycasualty360.com/2014/10/21/ridesharing-presents-challenges-and-opportunities?page=2.

[72] See id.

[73]Insurance Designed with Uber in Mind, Uber, http://uberxcolorado.com/drive/?page_id=483 (last visited Sept. 17, 2015).

[74] Chokshi, supra note 67.

[75] See Colorado Makes Uber History, Uber Newsroom, (June 5, 2014), available at http://newsroom.uber.com/denver/2014/06/colorado-makes-uber-history-2/ (Uber calling the regulations “stringent” yet “sensible.”). Kathleen Lavine, Colorado Passes Bill Legalizing UberX, Lyft, Denver Bus. J. (Apr. 29, 2014, 5:46 PM MDT), available at http://www.bizjournals.com/denver/blog/boosters_bits/2014/04/colorado-passes-bill-legalizing-uberx-lyft.html (Lyft saying were “thrilled” by the “rigorous set of safety standards.”).

[76] See Decision 13-09-045 Adopting Rules and Regulations to Protect Safety While Allowing New Entrants to the Transportation Industry, Cal. Pub. Utilities Comm’n 2 (Sept. 23, 2013), http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M077/K192/77192335.PDF.

[77] S.B. 14-125, 69th Gen. Assemb., Reg. Sess. (Colo. 2014), http://www.leg.state.co.us/clics/clics2014a/csl.nsf/fsbillcont2/70364091166B28FC87257C4300636F6B/$FILE/125_01.pdf.

[78] Hourdajian, supra note 70.

[79] Andy Vuong, Colorado Lawmakers Still Wrangling Insurance for Lyft, UberX, Denver Post (Apr. 2, 2014, 6:41:13 PM MDT), http://www.denverpost.com/business/ci_25480333/colorado-lawmakers-still-wrangling-insurance-lyft-uberx.

[80] See Assemb. B. 2293 § 5433, 2013-2014 Assemb., Reg. Sess. (Cal. 2014), available at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB2293.

[81] See id. § 5438.

[82] See Decision 13-09-045 Adopting Rules and Regulations to Protect Safety While Allowing New Entrants to the Transportation Industry, Cal. Pub. Utilities Comm’n 2 (Sept. 23, 2013), http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M077/K192/77192335.PDF.

More Coverage, More Problems: No Private Remedies for Kentuckians Hurt by HIPAA Violations After Adoption of the Affordable Care Act

Note | 103 KY. L. J. ONLINE 7 | Aug. 7, 2015

Chelsea N. Hayes[1]

Introduction

Kentucky is leading the way in America’s first state-based exchange to implement the Affordable Care Act (hereinafter “ACA”).[2] While this presumably will assist the one in six Kentuckians who are uninsured,[3] doctors and medical facilities may mistakenly disclose private documents with the high influx of new patients. Therefore, Kentucky citizens may question how to resolve violations of privacy mandated by the Health Insurance Portability and Accountability Act (hereinafter “HIPAA”).[4]HIPAA does not create a state-based private cause of action for violations of its privacy provisions.[5] Kentucky also has no state statute or common law right allowing state private causes of action for HIPAA violations.[6] While Kentucky has legislated a statute allowing private causes of action for other state statute violations, this right does not extend to federal statutes (e.g. HIPAA), regulations, or local ordinances.[7] Because HIPAA does not provide a plaintiff a federal private cause of action,[8] Kentucky refuses to infer a right where Congress has not.[9] Currently, the only way a person may pursue HIPAA violations is by filing a complaint with the Federal Office of Civil Rights (hereinafter “OCR”),[10] yet the individual receives no personal compensation.This note will first explore the interplay between the ACA and HIPAA in Section I, elaborating on Kentucky’s adoption of the ACA and expansion of its medical landscape. Section II explains existing precedent regarding state remedies for HIPAA violations and emphasizes aggrieved Kentuckians’ lack of recovery. Section III illuminates how Kentucky’s medical landscape is not unique from other states’, which allow state based causes of action. As a result, Kentucky should enact a statutory private cause of action to develop its medical landscape alongside the expansion of healthcare similar to West Virginia’s legislative scheme.

I. Background: Interaction between The Affordable Care Act and HIPAA

The implementation of the ACA allows millions of Americans the opportunity to receive affordable healthcare. Kentucky quickly adopted the ACA on a state level to provide statewide coverage and accessibility to Kentuckians.[11] As the number of individuals accessing healthcare increases, providers may become overwhelmed, and some protected health information may be unintentionally disclosed to the public. HIPAA governs these disclosures via regulations, violations, fines, and incarcerations,[12] incentivizing doctors and other health professionals to proceed carefully and diligently with the influx of patients. HIPAA alone, however, is insufficient to adequately address privacy because enforcement wavers at best, and individuals cannot receive adequate compensation because no federal private cause of action exists.

A. The Affordable Care Act

The ACA, enacted in 2010, employed a patient’s “Bill of Rights,” allowing “the American people the stability and flexibility [needed] to make informed decisions about their health.”[13] As of January 1, 2014, an estimated 14 million Americans will gain health insurance coverage via the Medicaid expansion or individual and/or small business tax reimbursements to lower healthcare costs via the federal and participating state exchanges.[14]These implementations provide individuals minimum health coverage that was once too costly to afford. More particularly, the Medicaid expansion[15] allows more vulnerable individuals 65 years or younger with an annual income below 133 percent of the federal poverty line to gain coverage despite pre-existing conditions or the inability to pay.[16] This means great benefits for the 7.8 million rural Americans who the United States Department of Health and Human Services (hereinafter “HHS”) predicts gained access to medical coverage under the ACA expansion.[17] Kentuckians are among these Americans who will benefit greatly.

B. Kentucky’s Adoption of the ACA

In 2013, 640,000 Kentuckians were uninsured, entailing approximately 15 percent of the state’s population.[18] Prompted by the ACA, Kentucky created Kynect, its state healthcare exchange.[19] According to the Washington Post, “56,422 [Kentuckians] have signed up for new health-care coverage, with 45,622 of them enrolled in Medicaid and the rest in private health plans, according to figures released by the governor’s office . . . .”[20]Of the estimated 640,000 Kentuckians covered, 308,000 could become insured after expansion of the Medicaid eligibility guidelines in accordance with the ACA.[21] This number forecasts that many Kentuckians can seek once unobtainable medical care for untreated conditions stemming from smoking, cancer, preventable hospitalizations, heart disease, etc.[22]When Kentucky welcomed the ACA, however, officials may not have anticipated increasing HIPAA violations. Healthcare reform has allowed Kentuckians to seek healthcare with lower financial cost, but a potentially more significant one: possible loss of personal privacy with no compensation. According to the HHS, “[a]s of December 31, 2013, [the Office of Civil Rights] had 258 open complaints and compliance reviews” for HIPAA violations.[23] While this is a national statistic, one can only imagine the increase in complaints upon adoption of the ACA within Kentucky. Each of the 258 disclosures represents a person, who if he or she lived in Kentucky, would have no private cause of action to recover despite federal legislation.

C. HIPAA Governs Personal Health Information Leaks

Congress enacted HIPAA on August 21, 1996.[24] HIPAA’s main purpose is to encourage uniform standards and requirements for storing protected health information (hereinafter “PHI”) and to reduce clerical burdens on all involved parties.[25] Accordingly, those who maintain PHIs adopt “administrative, technical, and physical safeguards . . . to ensure the integrity and confidentiality of the information, to protect against any reasonably anticipated threats or hazards to the security or integrity of the information and unauthorized uses or disclosures of the information, and otherwise to ensure compliance with this part by the officers and employees of such person.”[26]HIPAA forms are the norm in all offices handling PHI because legislation covers health care providers, health care clearing houses, and health plans (all considered “covered entities”).[27] In 2009, the Health Information Technology for Economic and Clinical Health Act[28] (hereinafter “HITECH”) required modification and strengthening of the HIPAA’s rules by mandating the inclusion of business associates[29] in conjunction with covered entities. HITECH also added levels of culpability for PHI violations.[30]A covered entity breaches HIPAA when it discloses PHI without permission or for an inappropriate purpose.[31] This violation does not have to be intentional, but instead may be inadvertent.[32] In order to seek redress for a suspected HIPPA violation, an individual must file a complaint with the Secretary of the HHS.[33] The OCR, a subdivision under the HHS, manages and investigates violation complaints or suspicion of HIPAA violations.[34] After a covered entity violates HIPAA, the OCR allows a time frame in which the covered entity may take a “satisfactory” action to correct the breach and mitigate the damages.[35] If corrective action is taken, the OCR will simply fine the covered entity via civil penalties,[36] and if the violation is criminal in nature, the OCR may instruct the Department of Justice to investigate.[37]When civil monetary damages are sought for HIPAA violations, complainants or aggrieved persons themselves do not receive money compensation.[38] Instead, recoveries are deposited into the U.S. Treasury to further assist HIPAA investigations.[39] The aggrieved person merely receives notifications regarding the resolution of the violations.[40] While HIPAA clearly defines what constitutes a violation, the Act omits any express private cause of action for individuals to seek compensation for the dissemination of their PHI.[41] Consequently, complainants are merely left with filing a complaint to the OCR, with few states providing additional redress.[42]

II. Case Law: Few State Causes of Action for HIPAA Violations

HIPAA violations have increased throughout the years, but aggrieved persons are left with no federal remedies because HIPAA does not generate a private cause of action.[43] Some states, however, allow recovery in state court via common law tort claims and/or statutory recoveries.[44] States such as West Virginia recognize both, whereas Kentucky recognizes neither.[45]

A. Aggrieved Persons Harmed by HIPAA Violations Cannot Recover in Federal Court

The Supreme Court iterated in 1979 that despite a person violating a federal statute and harming another individual, a violation does not automatically prompt a private cause of action.[46] As a result, harmed persons do not individually benefit from HIPAA protections.[47] In fact, the Supreme Court in 2001 stated that HIPAA will never provide a cause of action for wronged individuals unless amended with the intent to establish that right.[48] This results in summary judgment for the defendant covered entity,[49] and the OCR provides the singular remedy.[50]

B. States Allowing HIPAA Violations to Establish the Standard of Care in Tort Claims

Recently few states have allowed HIPAA guidelines to provide the standard of care for common law claims in state court litigation. In these jurisdictions, HIPAA rules supply the baseline for what a medical professional should do regarding privacy and security of PHI in negligence claims. This allows plaintiffs to claim that the covered entity was negligent according to the statutory regulations of HIPAA without need for expert testimony, establishing negligence per se.[51] A negligence per se claim statutorily establishes the standard of care[52] and permits aggrieved individuals to recover tort damages where no compensatory remedy is available through the OCR.[53] Additionally, this method allows plaintiffs to stand in court without immediately granting the defendant summary judgment.[54] The small number of state cases, indicates that this recovery has not yet picked up steam, but serves as a reminder that states surrounding Kentucky have implemented repercussions for breaches of HIPAA whether through negligence per se or other common law torts.[55]

C. State Statutory Recoveries for HIPAA Violations

Apart from common law tort claims, fourteen states have created a statutory cause of action for HIPAA violations.[56] For example, West Virginia is a model state to explore the effect of both common law and statutory recoveries for HIPAA violations,[57] and will provide the exemplars for this discussion.[58] The West Virginia statute was enacted in 1983,[59] and the state’s highest court further elaborated on this statute by reaffirming a patient’s ongoing right to sue over a HIPAA violation because both a well-recognized common law and statutory right existed under state law.[60] As a result, these states[61] protect privacy by allowing individuals a private cause of action as long as the statute mandates more privacy provisions than HIPAA to avoid federal preemption issues. HIPAA contains a preemption provision mandating that HIPAA supersede any contrary provision of state law.[62] Some courts have grappled with the idea of HIPAA preemption if the states were to create common law or statutory causes of action.West Virginia’s highest court has led the way in litigation and explanation of HIPAA preemption, iterating that HIPPA does not preempt state statutory causes of action for the wrongful disclosure of PHI.[63] In order for HIPAA to preempt any state statute, the state law must be contrary to HIPAA.[64] A law is not contrary if the state law is more stringent than a HIPAA standard, requirement, or implementation.[65] In R.K. v. St. Mary’s Medical Center, Inc., the West Virginia court held “such state-law claims compliment [sic] HIPAA by enhancing the penalties for its violation and thereby encouraging HIPAA compliance.”[66] The plaintiff, R.K., filed state law claims after disclosing otherwise-undisclosed personal information to hospital employees in order to seek treatment.[67] While hospitalized, hospital employees accessed R.K.’s record without permission and relayed PHI to his estranged wife and her divorce lawyer.[68] R.K. initiated state law claims including, but not limited to, breach of confidentiality and invasion of privacy.[69]While the circuit court stated HIPAA preempted these claims, [70] the higher court disagreed, analyzing Yath v. Fairview Clinics, N.P.,[71] involving a state statutory cause of action. Here, the defendant’s clinic tested the plaintiff, Yath, for a sexually-transmitted disease.[72] A clinic assistant accessed his records and disclosed the information to Yath’s husband. Yath sued for wrongful disclosure of medical information in violation of the Minnesota statute by improperly releasing PHI.[73] While lower courts determined HIPAA preempted the state statute, the Minnesota Court of Appeals held that the statute was not preempted because it is not “contrary” to HIPAA.[74] The defendants could comply with both HIPAA and the statute since both laws are “complementary,” not “contradictory” as the laws obtained the same goal of safeguarding patient PHI.[75] The West Virginia Supreme Court of Appeals elaborates that though the remedies in Minnesota Statute § 144.335 and HIPAA are not identical, [76] the differences are merely functional. [77] Both statutes primarily prohibit mishandling of PHI, but HIPAA focuses on criminal liability and civil fines while § 144.335 permits compensatory damages. As such, states like West Virginia allow HIPAA to establish the privacy protection floor, and states may enforce more stringent laws without preemption.As a result, states like West Virginia approve both complementary statutory and common law claims for HIPAA breaches. At the end of the day, however, each individual state must make this decision. “Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals.”[78]

D. Kentucky Does Not Recognize a State Common Law or Statutory Cause of Action for HIPAA Violations

Kentucky has yet to recognize any common law private cause of action for HIPAA violations using HIPAA regulations as the standard of care.[79] Alternatively, Kentucky appears to statutorily provide recovery for individuals injured by violations of any statute via KRS § 446.070.[80] This statute allows an aggrieved party to recover for a violation of another statute if that particular statute provides no civil remedy, and the aggrieved person is within the class of persons the statute is meant to protect.[81]In Yeager v. Dickerson, the court addresses whether the plaintiff has a cause of action via KRS § 446.070 against her attorneys for disclosure of medical information.[82] Yeager, executrix of her daughter’s estate, alleged a violation of HIPAA when her daughter died from a drug overdose after release of her PHI at her child’s custody hearing.[83] Because Congress has not expressly intended a private right under HIPAA, the Kentucky Court of Appeals held that KRS § 446.070 does not confer a private civil remedy for such violations.[84] According to the court, the “any statute” language appearing in KRS § 446.070 is limited to state statutes only and exempts federal statutes in which Congress has not intended a remedy to be conferred.[85] The court further stated that even if the General Assembly had intended a right under the state statute where Congress had not, HIPAA would preempt Kentucky state law.[86] The court also has not recognized any common law tort claims for plaintiffs since the claims are grounded in HIPPA.[87] This leaves Kentuckians wondering what rights they can exercise after a HIPAA violation occurs.

III. Solution: Kentucky Should Implement a State Statutory Cause of Action for HIPAA Violations

As it exists, Kentucky provides no private cause of action through KRS § 446.070 for persons harmed by PHI disclosure.[88] This legislative void can only be fully remedied by the Kentucky Legislature enacting a statute specifically allowing a private cause of action for HIPAA violations. For guidance, Kentucky should look to neighboring states, particularly West Virginia, due to similarities between the two states’ medical landscapes. Although Kentucky is more populous and has had different jurisprudence on the subject than West Virginia, these should not stand in the way of Kentucky’s recognition of privacy rights.

A. Proposed Legislation for Recovery under a Kentucky State Statute

Private litigation on a federal scale might overwhelm the effectiveness of HIPAA, but other states have taken charge of regulating medical privacy. In fact, prior to HIPAA, states were the primary regulators of privacy concerns via the common law, statutes, and regulations.[89] The Yeager Court rationalized correctly that even if a private right of action existed, it would be preempted.[90] This is accurate because HIPAA establishes the floor for privacy protection and Kentucky has not yet expanded it further.[91] To circumvent preemption and better protect Kentuckians, legislators must be willing to enact “strong health privacy laws”[92] to redress those harmed.Even after HIPAA’s adoption, HHS explained, “[w]e believed then, and still believe, that there is an urgent need for legislation to establish comprehensive privacy standards for all those who pay and provide for health care, and those who receive information from them.”[93] This concept illuminates the idea that all fifty states should enact legislation to heighten privacy laws to better protect citizens rather than wholly relying on HIPAA to restore justice to aggrieved plaintiffs.[94]This is an alarming problem after the ACA because persons may already distrust the healthcare system due to previously limited access.[95] By enacting a state statutory provision in which KRS § 446.070 will allow recovery, rural Kentuckians may be more apt to trust and seek out healthcare they once could not afford. These persons must not live in fear of Kentucky forgoing individual privacy protection because redress is unavailable.While Kentucky courts have rebuked a private cause of action,[96] implementing a state statute would allow the courts to analyze it as a matter of first impression and partake in shaping the common law associated with the statute. Kentucky can look to West Virginia, its neighbor, for guidance since West Virginia implemented higher safeguards to protect its residents.[97] Little case law exists in Kentucky and West Virginia regarding state rights of action for HIPAA violations. However, in the available case law, Kentucky and West Virginia rationalize the subject comparably.[98] In fact, the only difference between the two states is solely the existing precedent, as the two states have strikingly similar medical landscapes. Precedent is the only barrier that stands between Kentucky and a state private cause of action—a barrier that the ACA will inevitably break down.

B. Comparison: The Kentucky and West Virginia Courts Rationalize Similarly

In Kentucky, Yeager held that the state statute regarding privacy for health care recipients did not confer a private right of action for HIPAA violations.[99] Authority in neighboring West Virginia from the Supreme Court of Appeals, however, is contrary to the Kentucky holding.[100] The courts’ rationale is quite similar, but the respective precedent is distinctive: West Virginia reaffirmed a patient’s ongoing right to sue where Kentucky has not yet initially recognized a patient’s right to sue.First, both courts recognize that HIPAA does not create a federal private right of action for aggrieved persons.[101] Second, neither Kentucky nor West Virginia specifically held that HIPAA preempts a state from recognizing a cause of action for disclosure of PHI.[102] Instead, the courts address whether HIPAA preempts particular statutes. As discussed in West Virginia, HIPAA would preempt state law, including statutory and common law, only if the state law would disallow compliance with both state and federal requirements or if the state law is contrary[103] and stands as an obstacle to HIPAA’s execution.[104]If the courts have already rationalized similarly, Kentucky should consider consulting other jurisdictions in at least allowing a statutory right of recovery in combination with KRS § 446.070 for aggrieved individuals. Preemption would also not be an obstacle, despite Kentucky courts’ rationale, because it is entirely possible for both the OCR to enforce HIPAA through civil and criminal fines and Kentucky to recognize a private cause of action focusing on individual recovery. Both proceedings could occur autonomously without affecting the other. Further, a state right of action would complement HIPAA’s floor by assisting and strengthening incentives to protect PHI with the expansion of the ACA.As one court stated, “[i]t is, to say the least, difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.”[105] While Kentucky has already taken strides to protect its own residents through adoption of the first state-based exchange for the ACA, it has fallen behind West Virginia and other states that have recognized a common law cause of action and others with statutory causes of action due to the toothless fear of preemption and outdated precedent in the time of the ACA.

C. Comparison: Kentucky and West Virginia have Comparable Medical Landscapes

Similar medical landscapes are important when advocating for one state government to adopt another’s remedies. This section statistically compares West Virginia and Kentucky to illustrate few differences exist between them. Kentucky conclusively has more uninsured individuals and more Medicaid recipients yet has no state cause of action like West Virginia. These statistics support Kentucky adopting West Virginia’s approach to redressing breaches.The implementation of the ACA has the potential to extend coverage to as many as 285,931 uninsured West Virginians.[106] West Virginia’s estimated 2013 population was 1,854,304, with 714,605 of those individuals living in rural areas.[107] Through the ACA Marketplace, 42% of adults (about 112,000) and 11% of children (roughly 30,000) will receive Medicaid, 23% of individuals will be eligible for tax credits (62,000), and 23% may gain coverage without financial assistance.[108] Of those uninsured individuals eligible for coverage, 259,000 (91%) are White, 16,461 (6%) are African-American, 2,850 (1%) are Latino or Hispanic, and 1,208 (0.4%) are Asian American or Pacific Islander.[109] At least 799,000 non-elderly individuals, including 91,098 children, have pre-existing health conditions who may now receive healthcare because of the ACA.[110]In comparison, Kentucky, with 647,000 uninsured, was the first state to adopt a state-based exchange for the ACA.[111] As of 2013, Kentucky had an estimated population of 4,395,295, of which 1,837,294 living in rural areas.[112] Through the ACA Marketplace, 45% of adults (about 291,000) and 9% of children (roughly 59,000) will receive Medicaid, 22% of individuals will be eligible for tax credits (145,000), and 24% may gain coverage without financial assistance.[113] Of those uninsured individuals eligible for coverage, 513,688 (83%) are White, 77,280 (12%) are African American, 18,272 (3%) are Latino or Hispanic, and 4,158 (1%) are Asian American or Pacific Islander.[114] At least 1,894,874 non-elderly Kentuckians, including 241,403 children, have pre-existing conditions.[115]The above statistics illuminate that Kentucky has more individuals, more uninsured, and a greater number of Medicaid expansion recipients than West Virginia. Both have high rural populations where poverty can be a perpetual cycle and healthcare a commodity. The majority of uninsured are Caucasian, suggesting this is not a racial discrepancy, but rather a rampant, non-discriminatory issue. This prompts the question why Kentucky has not led the way in protecting Kentuckians from privacy violations like its very similar neighbor, West Virginia? After West Virginia’s adoption of both a common law and statutory cause of action protecting its citizens, Kentucky has few arguments for first implementing the ACA yet refusing to fully protect Kentuckians from HIPAA violations that may increase due to the state’s adoption of the ACA.

IV. Conclusion

While Kentucky is an advocate for providing healthcare via the ACA, Kentucky continues to ignore each person’s individual privacy rights within the medical sphere by providing no redress to Kentuckians hurt by PHI disclosures. As a result, Kentucky lacks the self-interest to fully protect its citizens because citizens desire redress when Kentucky recognizes no right. Neighboring state courts have begun utilizing HIPAA as evidence of the standard of care for other common law torts while others allow statutory causes of actions for HIPAA violations. Kentucky offers neither. This note advocates for Kentucky to implement legislation to strengthen HIPAA regulations by allowing a state private cause of action for Kentuckians hurt or affected by PHI disclosures. Kentucky should look to other states with private causes of action, such as West Virginia, for guidance. This private cause of action will more uniformly protect and guarantee Kentuckians’ privacy via state redress.

[1] J.D., May 2015, University of Kentucky College of Law.

[2] See Mary Branham, State Success & Federal Missteps, The Council of State Governments, http://www.csg.org/pubs/capitolideas/2014_jan_feb/healthcareexchanges.aspx (last visited Jan. 19, 2014). For information regarding the exchange, see Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010).

[3] Steve Beshear, My State Needs ObamaCare. Now., Ny Times (Sept. 26, 2013), http://www.nytimes.com/2013/09/27/opinion/my-state-needs-obamacare-now.html.

[4] Health Insurance Portability and Accountability Act (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (codified as scattered sections of 18, 26, 29, 42 U.S.C. (2000)).

[5] McMillen v. Ky. Dep’t. of Corr., 233 S.W.3d 203, 205 (Ky. Ct. App. 2007).

[6] Young v. Carran, 289 S.W.3d 586, 589 (Ky. Ct. App. 2008) (articulating Kentucky’s lack of common law or statutory private cause of action for HIPAA violations).

[7] See Ky. Rev. Stat. Ann. § 446.070 (2013); T & M Jewelry, Inc. v. Hicks ex rel. Hicks, 189 S.W.3d 526, 530 (Ky. 2006); Alderman v. Bradley, 957 S.W.2d 264, 266-67 (Ky. 1997); Yeager v. Dickerson, 391 S.W.3d 388, 393 (Ky. Ct. App. 2013).

[8] See Alexander v. Sandoval, 532 U.S. 275, 275 (2001) (holding that there is no private right of action to enforce disparate-impact regulations promulgated under Title VI of Civil Rights Act of 1964.”); Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006) (holding no private cause of action for disclosure of PHI during a deposition); Johnson v. Quander, 370 F. Supp. 2d 79, 100 (D.D.C. 2005) (holding that a convicted robber had no private cause of action under HIPAA when challenging the DNA Act because the Secretary of HHS only had that right); Univ. of Colo. Hosp. v. Denver Pub. Co., 340 F. Supp. 2d 1142, 1145 (D. Colo. 2004) (finding no HIPAA private cause of action because the statute created enforcement means for aggrieved persons); O'Donnell v. Blue Cross Blue Shield of Wyo., 173 F. Supp. 2d 1176, 1179-80 (D. Wyo. 2001) (holding no express or implied private cause of action exists in HIPAA).

[9] Yeager, 391 S.W.3d at 394.

[10] Bob Herman, HIPAA May Form Basis for State Law Private Cause of Action, Becker’s Hosp. Review (June 24, 2011), http://www.beckershospitalreview.com/healthcare-information-technology/hipaa-may-form-basis-for-state-law-private-cause-of-action.html.

[11] Beshear, supra note 2.

[12] See supra notes 18-23 and accompanying text.

[13] About the Law, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/healthcare/rights/ (last visited Jan. 20, 2014).

[14] Individual Health Insurance Coverage, AHIP Coverage (Oct. 12, 2010), http://www.ahipcoverage.com/2010/10/12/individual-health-insurance-coverage/; Small Business Health Care Tax Credit for Small Employers, IRS (Dec. 19, 2013), http://www.irs.gov/uac/Small-Business-Health-Care-Tax-Credit-for-Small-Employers.

[15] While tax reimbursement participants will also comprise a large number of individuals the ACA will help, this paper will primarily focus on Medicaid recipients as this individuals are most likely gaining access for the first time.

[16] Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2575, (2012); Key Features of the Affordable Care Act by Year, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/healthcare/facts/timeline/timeline-text.html (last visited Jan. 20, 2014).

[17] See The Affordable Care Act-What It Means in Rural America, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/healthcare/facts/factsheets/2013/09/rural09202013.html (last visited Jan. 20, 2014).

[18] A Healthier Kentucky: Health Insurance Coverage for Every Kentuckian, Governor of Kentucky Steve Beshear, http://governor.ky.gov/healthierky/Pages/default.aspx (last visited Jan. 20, 2014) [hereinafter A Healthier Kentucky].

[19] Id.

[20] Stephanie McCrummen, In Rural Kentucky, Health-Care Debate Takes Back Seat as the Long-Uninsured Line Up, The Washington Post, (Nov. 23, 2013), http://www.washingtonpost.com/national/in-rural-kentucky-health-care-debate-takes-back-seat-as-people-sign-up-for-insurance/2013/11/23/449dc6e0-5465-11e3-9e2c-e1d01116fd98_story.html. Furthermore, as of March 20, 2014, 321,932 Kentuckians had enrolled through Kynect and 257,477 of these individuals qualified under the Medicaid expansion. More than 321,000 Now Enrolled Through Kynect as March 31 Deadline Approaches, Kentucky.gov (Mar. 21, 2014), http://kentucky.gov/Pages/Activity-Stream.aspx?viewMode=ViewDetailInNewPage&eventID=&activityType=PressRelease.

[21] Beshear, supra note 2.

[22] Id. (“[Kentucky] ranks among the worst, if not the worst, in almost every major health category, including smoking, cancer deaths, preventable hospitalizations, premature death, heart disease and diabetes.”).

[23] Enforcement Highlights, U.S. Dep’t of Health and Human Serv. (Dec. 31, 2013), http://www.hhs.gov/ocr/privacy/hipaa/enforcement/highlights/12312013.html.

[24] HIPAA, Pub. L. No. 104-191, 110 Stat. 1936 (codified as scattered sections of 18, 26, 29, 42 U.S.C. (2000)).

[25] See id. § 261.

[26] 42 U.S.C. § 1320d-2(d)(2)(A-C) (2014).

[27] See 45 C.F.R. § 160.103(4)(iv)(1-3) (2014).

[28] American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. No. 111-5, 123 Stat. 226 (Feb. 17, 2009), codified at 42 U.S.C. §§300jj et seq.; §17901 et seq.

[29] Business associate: (1) Except as provided in paragraph (4) of this definition, business associate means, with respect to a covered entity, a person who: (i) On behalf of such covered entity or of an organized health care arrangement (as defined in § 164.501 of this subchapter) in which the covered entity participates, but other than in the capacity of a member of the workforce of such covered entity or arrangement, performs, or assists in the performance of: (A) a function or activity regulated by this subchapter, including claims processing or administration, data analysis, processing or administration, utilization review, quality assurance, patient safety activities listed at 42 CFR 3.20, billing, benefit management, practice management, and repricing; or (B) Any other function or activity regulated by this subchapter; or (ii) Provides, other than in the capacity of a member of the workforce of such covered entity, legal, actuarial, accounting, consulting, data aggregation (as defined in § 164.501 of this subchapter), management, administrative, accreditation, or financial services to or for such covered entity, or to or for an organized health care arrangement in which the covered entity participates, where the provision of the service involves the disclosure of protected health information from such covered entity or arrangement, or from another business associate of such covered entity or arrangement, to the person. 45 C.F.R. § 160.103(1)(i-ii) (2014).

[30] It also expanded the maximum fine to $50,000 per violation depending on the culpability level, capping maximum amounts for repeated offenses at $1,500,000 per year for aggregate violations. See HIPAA Enforcement after the Recovery Act, Hall, Render, Killian, Heath & Lyman (March 30, 2009), http://www.hallrender.com/library/articles/1085/033009___Enforcement_after_the_Recovery_Act.pdf. However, HIPAA allows an exception to fines if the violation was due to reasonable cause. 42 USC § 1320d-5(a)(1)(B) (2014). HITECH also proposed allowing individuals to share a percentage of recovery or settlement; HHS had until 2012 to issue the regulation, but this does not appear to have occurred yet. Chris Dimick, HIPAA Violation? Sue me, J. of AHIMA (Mar. 1, 2011), http://journal.ahima.org/2011/03/01/hipaa-violation-sue-me/.

[31] See 45 C.F.R. § 164.502(a) (2014) (explaining general rules on violations and permitted uses of PHI). A “breach” is defined by HHS as “an impermissible use or disclosure under the Privacy Rule that compromises the security or privacy of the protected health information.” Breach Notification Rule, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/ocr/privacy/hipaa/administrative/breachnotificationrule/index.html (last visited Mar. 19, 2014).

[32] See, e.g., 42 U.S.C. § 1320d-5(a)(1)(A), (B) (2014).

[33] How OCR Enforces the HIPAA Privacy & Security Rules, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/ocr/privacy/hipaa/enforcement/process/howocrenforces.html (last visited Jan. 17, 2014) [hereinafter How OCR Enforces].

[34] See 42 U.S.C. § 1320d-5(c)(2) (2014); How OCR Enforces, supra note 32.

[35] How OCR Enforces, supra note 32.

[36] 42 U.S.C. § 1320d-5(a)(2)-(3) (2014).

[37] Id. § 1320d-6; How OCR Enforces, supra note 32.

[38] How OCR Enforces, supra note 32.

[39] Id.

[40] Id. Further, in 2012, HHS reported that 10,454 individuals filed complaints to the OCR, indicating that complaints are not at a minimum. See Health Information Privacy Complaints Received by Calendar Year, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/ocr/privacy/hipaa/enforcement/data/complaintsyear.html (last visited Jan. 17, 2014) [hereinafter Privacy Complaints] (providing a bar graph to show increasing numbers of HIPAA complaints each year).

[41] Instead, Congress limited enforcement to the Secretary of Health and Human Services, which indicates it did not intend to create private rights of action in individuals aggrieved by HIPAA breaches. Social Security Act, § 1171, 42 U.S.C. § 1320d); Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006).

[42] After the HITECH expansion, state attorney generals are now allowed to bring civil damage claims against entities that breach HIPAA, but this does not affect an individual’s right to sue. Dimick, supra note 29. Even then, the attorney generals may be overwhelmed as well and only choose to take the most devastating and detrimental cases.

[43] See, e.g., Acara, 470 F.3d at 569.

[44] See infra Sections II.B-C.

[45] See Individual Right of Action for Medical Records Access: 50 State Comparison, Robert Wood Johnson Found. (Jan. 20, 2014), http://www.healthinfolaw.org/comparative-analysis/individual-right-action-medical-records-access-50-state-comparison [hereinafter 50 State Comparison].

[46] Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979) (citation omitted).

[47] See Alexander v. Sandoval, 532 U.S. 275, 275 (2001) (holding that there is no private right of action to enforce disparate-impact regulations promulgated under Title VI of Civil Rights Act of 1964.”); Acara, 470 F.3d at 570 (holding no private cause of action for disclosure of PHI during a deposition); Johnson v. Quander, 370 F. Supp. 2d 79, 100 (D.D.C. 2005) (holding that a convicted robber had no private cause of action under HIPAA when challenging the DNA Act because the Secretary of HHS only had that right); Univ. of Colo. Hosp. v. Denver Pub. Co., 340 F. Supp. 2d 1142, 1145 (D. Colo. 2004) (finding no HIPAA private cause of action because the statute created enforcement means for aggrieved persons); O'Donnell v. Blue Cross Blue Shield of Wyo., 173 F. Supp. 2d 1176, 1179-80 (D. Wyo. 2001) (holding no express or implied private cause of action exists in HIPAA).

[48] Alexander, 532 U.S. at 286-87 ("Without [statutory intent], a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.").

[49] See Acara, 470 F.3d at 572.

[50] HIPAA enforcement has consistently been at a minimum. For example, between 2003 and 2011, the OCR received over 25,000 complaints, but only imposed a formal civil fine in one of these cases. The OCR settled six of these cases. HHS referred 495 cases to the Department of Justice, resulting in only sixteen prosecutions. Rachel Grunberger, Senate Hearings Focus on Lack of HIPAA Enforcement, Final HITECH Rule, Inside Privacy (Dec. 22, 2011), http://www.insideprivacy.com/senate-hearings-focus-on-lack-of-hipaa-enforcement-final-hitech-rule/.

[51] See, e.g., Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C., 102 A.3d 32, 42 (Conn. Super. Ct. 2014) (holding HIPAA may be used as the standard of care for a negligence claim and HIPAA does not preempt this type of claim); Doe 1631 v. Quest Diagnostics, Inc., 395 S.W.3d 8, 18-19 (Mo. 2013) (allowing a breach of fiduciary claim against defendant after its phlebotomist faxed HIV results without the patient’s permission); R.K. v. St. Mary's Med. Ctr., Inc., 735 S.E.2d 715, 723 (W. Va. 2012) (holding HIPAA may be used as the standard of care for a negligence claim); Sorensen v. Barbuto, 143 P.3d 295, 299 n.2 (Utah Ct. App. 2006) (holding plaintiff established an action for negligent breach of confidentiality by relying on standards within HIPAA); I.S. v. Washington Univ., No. 4:11CV235SNLJ, 2011 WL 2433585, at *2 (E.D. Mo. June 14, 2011) (“[T]he Court finds that Count III may stand as a state claim for negligence per se despite its exclusive reliance upon HIPAA.”); K.V. v. Women's Healthcare Network, LLC, 07-0228-CV-W-DW, 2007 WL 1655734, at *1 (W.D. Mo. June 6, 2007) (explaining that the negligence per se claim based on HIPAA violation was a state-law claim); Acosta v. Byrum, 638 S.E.2d 246, 253 (N.C. Ct. App. 2006) (allowing plaintiff to reference HIPAA as baseline evidence of appropriate medical standard of care needed as an element of negligence); Harmon v. Maury Cnty., Tenn., No. 1:05 CV 0026, 2005 WL 2133697, at *3 (M.D. Tenn. Aug. 31, 2005).

[52] Young v. Carran, 289 S.W.3d 586, 588-89 (Ky. Ct. App. 2008) (citation omitted).

[53] State supreme courts wrote two of these notable decisions, demonstrating that at least two states’ highest courts have recognized HIPAA as proof of the standard of care for common law tort claims. See, e.g., Sorensen, 143 P.3d at 299 n.2; R.K., 735 S.E.2d at 723.

[54] It appears that plaintiffs must still prove damages proximately caused by the defendant’s actions, and damages must be legally cognizable. See Alagia, Day, Trautwein & Smith v. Broadbent, 882 S.W.2d 121, 126 (Ky. 1994).

[55] For example, Ohio’s Supreme Court in 1999 held that “an independent tort exists for the unauthorized, unprivileged disclosure to a third party of nonpublic medical information that a physician or hospital has learned within a physician-patient relationship" and "a third party can be held liable for inducing the unauthorized, unprivileged disclosure.” Biddle v. Warren Gen. Hosp., 715 N.E.2d 518, 523, 528 (Ohio 1999). This tort only applied to the confidential relationship between the physician and the patient, however. Recognizing the shortcomings of this tort and the growing problem of inadvertent disclosure with other entities before HITECH, the same court created a separate tort solely related to medical records that applies to a broader range of persons not limited to physicians. See Hageman v. Sw. Gen. Health Ctr., 893 N.E.2d 153, 157-58 (Ohio 2008).

[56] See 50 State Comparison, supra note 44 (illustrating California, Delaware, Illinois, Louisiana, Maryland, Massachusetts, Montana, New Hampshire, New York, Tennessee, Washington, West Virginia, Wisconsin, and Wyoming have private causes of action).

[57] See R.K., 735 S.E.2d at 715.

[58] See infra notes 83-109 and accompanying text (explaining the similarities between West Virginia and Kentucky).

[59] The statute explains that “[t]he provisions of this article may be enforced by a patient, authorized agent or authorized representative, and any health care provider found to be in violation of this article shall pay any attorney fees and costs, including court costs incurred in the course of such enforcement.” W. Va. Code § 16-29-1(d) (2011 & Supp. 2014); W. Va. Code § 29B-1-6 (2012) (“Any custodian of any public records who willfully violates the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred dollars nor more than one thousand dollars, or be imprisoned in the county jail for not more than twenty days, or, in the discretion of the court, by both fine and imprisonment.”).

[60] See R.K., 735 S.E.2d at 724.

[61] See 50 State Comparison, supra note 44.[62] 42 U.S.C. § 1320d-7 (2014), which states in part: (1) General rule, Except as provided in paragraph (2), a provision or requirement under this part, or a standard or implementation specification adopted or established under sections 1320d-1 through 1320d-3 of this title, shall supersede any contrary provision of State law, including a provision of State law that requires medical or health plan records (including billing information) to be maintained or transmitted in written rather than electronic form. (2) Exceptions, A provision or requirement under this part, or a standard or implementation specification adopted or established under sections 1320d-1 through 1320d-3 of this title, shall not supersede a contrary provision of State law, if the provision of State law... (B) subject to section 264(c)(2) of the Health Insurance Portability and Accountability Act of 1996 [42 USCS § 1320d-2 note], relates to the privacy of individually identifiable health information (emphasis added).

[63] See R.K., 735 S.E.2d at 724.

[64] See 45 C.F.R. § 160.203(a) (2014).

[65] See id. § 160.203(b).

[66] R.K., 735 S.E.2d at 724.

[67] Id. at 717.

[68] Id.

[69] Id. at 718 (iterating claims for outrageous conduct, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent entrustment, breach of confidentiality, invasion of privacy, and punitive damages).

[70] Id. at 719.

[71] 767 N.W.2d 34 (Minn. Ct. App. 2009).

[72] Id. at 38.

[73] Minn. Stat. § 144.335 (2006) (repealed 2007), available at https://www.revisor.mn.gov/statutes/?year=2006&id=144.335 (providing for a private cause of action for the wrongful disclosure of an individual’s medical records); Yath v. Fairview Clinics, 767 N.W.2d 34, 39 (Minn. Ct. App. 2009).

[74] 45 C.F.R § 160.202 (2014); R.K. v. St. Mary's Med. Ctr., Inc., 735 S.E.2d 715, 721 (W. Va. 2012) (“Just because a distinction exists does not make [a state statute] ‘contrary’ to HIPAA. A state law is ‘contrary’ to HIPAA if a health care provider ‘would find it impossible to comply with both the State and federal requirements’ or if the state law is ‘an obstacle to the accomplishment and execution of the full purposes’ of HIPAA.’”).

[75] R.K., 735 S.E.2d at 722-23 (“The stated purpose of HIPAA is to improve the Medicare and Medicaid programs and ‘the efficiency and effectiveness of the health care system, by encouraging the development of a health information system through the establishment of standards and requirements for the electronic transmission of certain health information.’ . . . Rather than creating an ‘obstacle’ to HIPAA, [Minn. Stat. § 144.334] supports at least one of HIPAA’s goals by establishing another disincentive to wrongfully disclose a patient’s health care record.”).

[76] See 45 U.S.C. §1320d-5 (2014) (imposing criminal penalties); Minn. Stat. § 144.335(3a(e)) (2006) (imposing compensatory damages in a civil action).

[77] See R.K., 735 S.E.2d at 722 (“The difference in remedy is functional only, in that a HIPAA violation subjects a person to criminal penalties.”).

[78] Lampf v. Gilbertson, 501 U.S. 350, 365 (1991) (Scalia, J., concurring in part and concurring in judgment).

[79] See, e.g., Young v. Carran, 289 S.W.3d 586, 589 (Ky. Ct. App. 2008).

[80] See Ky. Rev. Stat. Ann. § 446.070 (2013).

[81] See Yeager v. Dickerson, 391 S.W.3d 388, 393 (Ky. Ct. App. 2013).

[82] Id. at 390.

[83] Id. at 391.

[84] Id. at 394.

[85] Id. “[T]he General Assembly did not intend [KRS § 466.070] ‘to embrace the whole of federal laws and the laws of other states and thereby confer a private civil remedy for such a vast array of violations.’” (citation omitted).

[86] Id.

[87] 50 State Comparison, supra note 44 (utilizing a nationwide map to explain Kentucky has not allowed tort claims).

[88] See supra notes 78-86 and accompanying text.

[89] See Joy L. Pritts, Altered States: State Health Privacy Laws and the Impact of the Federal Health Privacy Rule, 2 Yale J. Health Pol’y L. & Ethics 327(2002) [hereinafter Altered States]. Further, “there is still room for states to protect their own citizens by retaining or enacting health privacy protections that mirror and improve upon those in the [federal legislation].” Id. at 328.

[90] See Yeager v. Dickerson, 391 S.W.3d 388, 394 (Ky. Ct. App. 2013).

[91] See generally id. at 388 (articulating no private recovery for plaintiffs in Kentucky).

[92] Altered States, supra note 88, at 345.

[93] Standards for Privacy of Individually Identifiable Health Information, 64 Fed. Reg. 59,923 (Nov. 3, 1999) (to be codified at 45 C.F.R. pts. 160-64).

[94] Altered States, supra note 88, at 347 (“This approach, endorsed by the Privacy Protection Study Commission in the 1970s, ensures that the states will be able to enforce the law and protect their citizens.”) (citing Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission, U.S. Privacy Prot. Study Comm’n 276-90 (July 1977), available at http://epic.org/privacy/ppsc1977report).

[95] As an example, distrust for the state was so extreme that some rural Kentuckians thought that enrolling in the state-health insurance coverage involved implanting microchips into their arms. McCrummen, supra note 19.

[96] See generally Yeager, 391 S.W.3d at 388 (illustrating Kentucky case law against a private cause of action).

[97] See supra section II.C (articulating West Virginia common law and statutory scheme allowing individuals rights of recovery for disclosures of PHI).

[98] See Yeager, 391 S.W.3d at 388; R.K. v. St. Mary's Med. Ctr., Inc., 735 S.E.2d 715 (W. Va. 2012).

[99] See Yeager, 391 S.W.3d. at 394.

[100] See R.K., 735 S.E.2d at 724.

[101] Id. at 718; Yeager, 391 S.W.3d at 393.

[102] See R.K., 735 S.E.2d at 721; Yeager, 391 S.W.3d at 394.

[103] See 45 C.F.R § 160.202-.203 (2013).

[104] See R.K., 735 S.E.2d at 721-24 (discussing HIPAA preempting contrary state laws and disallowing any laws impeding HIPAA enforcement).

[105] Wash. Mut. Bank v. Superior Court, 75 Cal. App. 4th 773, 783 (1999) (citation omitted).

[106] The Uninsured in West Virginia, Addiction Tech. Transfer Ctr. Network, http://attcnetwork.org/regcenters/generalContent.asp?rcid=2&content=PARTCUSTOM (last visited Jan 20, 2014) [hereinafter The Uninsured in West Virginia].

[107] Living in rural areas increased the possibilities of being uninsured. See West Virginia, Rural Assistance Ctr. (Dec. 29, 2014), http://www.raconline.org/states/west-virginia.

[108] See How Will the Uninsured in West Virginia Fare Under the Affordable Care Act?, Kaiser Family Found., http://kff.org/health-reform/fact-sheet/state-profiles-uninsured-under-aca-west-virginia/ (last visited Jan. 20, 2014); Interactive: A State-by-State Look at How the Uninsured Fare Under the ACA, Kaiser Family Found., http://kff.org/interactive/uninsured-gap/ (last visited Jan. 19, 2014) (hereinafter Interactive).

[109] The Uninsured in West Virginia, supra note 105.

[110] 5 Years Later: How the Affordable Care Act is Working for West Virginia, U.S. DEP’T OF HEALTH AND HUMAN SERV., http://www.hhs.gov/healthcare/facts/bystate/wv.html (last visited Jan. 20, 2014).

[111] How Will the Uninsured in Kentucky Fare Under the Affordable Care Act?, Kaiser Family Foundation, http://kff.org/health-reform/fact-sheet/state-profiles-uninsured-under-aca-kentucky/ (last visited Jan. 19, 2014) (hereinafter Kaiser Kentucky).

[112] Kentucky, Rural Assistance Ctr. (Sept. 12, 2014), http://www.raconline.org/states/kentucky.

[113] Kaiser Kentucky, supra note 110; Interactive, supra note 107.

[114] How the Health Care Law is Making a Difference for the People in Kentucky, KY and Appalachia Public Health Training Ctr., http://www.uky.edu/kaphtc/resources/policy-development-and-program-planning/how-health-care-law-making-difference-people (last visited Jan. 20, 2014).

[115] 5 Years Later: How the Affordable Care Act is Working for Kentucky, U.S. DEP’T OF HEALTH AND HUMAN SERV., http://www.hhs.gov/healthcare/facts/bystate/wv.html (last visited Jan. 20, 2014).