Non-Restorable Competence to Stand Trial: A Loophole in Kentucky's Law

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Sean Harrison[1]

 

Introduction 

 

 In Kentucky, a defendant’s competence to stand trial may be called into question at any point after arraignment.[2] If reasonable grounds exist for the court to believe that the defendant is not competent to stand trial, the proceedings are halted and a full determination of the defendant’s capacity must be made.[3] The court must then appoint a psychologist or psychiatrist to assess the defendant’s competence and file a report with the court detailing his or her findings.[4] Once the report is submitted, the court holds a hearing to determine if the defendant is competent to stand trial.[5] If the court deems the defendant incompetent to stand trial (IST), such a defendant may not be “tried, convicted, or sentenced so long as the incompetency continues.”[6] Kentucky is not unique in this procedure—the federal judiciary, as well as a majority of states, use this same process to assess a defendant’s ability to stand trial.[7]

Competency proceedings increase in complexity when courts are faced with the decision of how to treat, detain, and rehabilitate such IST defendants. In Kentucky, the appointed psychologist or psychiatrist is required to make a second finding: What is the likelihood of the defendant’s competence being restored in the foreseeable future?[8] When a defendant is found to be incompetent, but competence is substantially likely to be restored in the foreseeable future, the court will generally commit the defendant to a forensic psychiatry facility for competency restoration treatment for a period of sixty days.[9] At the end of those sixty days, if the defendant is found competent to stand trial, the proceedings against him will continue.[10]

A defect appears in Kentucky’s criminal procedure, however, when a defendant is found incompetent and his competence is deemed unlikely to be restored in the foreseeable future. In this case, the court is required to conduct an involuntary hospitalization of the defendant pursuant to chapter 202A or 202B of the Kentucky Revised Statutes.[11] The proscribed chapters outline the criteria for involuntary hospitalization for a person with a mental illness[12] or a person with an intellectual disability.[13] One element of both criteria is that the patient can reasonably benefit from the treatment provided in the hospitalization.[14] When a person is deemed to have non-restorable competence, however, there is, by definition, no possible treatment which could benefit their condition. Thus, once such a defendant is hospitalized involuntarily, the hospital must discharge him because he fails to meet the criteria for an admission under KRS 202A or 202B.[15] Kentucky law provides little recourse for courts to prevent such defendants from being discharged.[16]

This Note will examine the legal and historical framework that has led to this gap in criminal procedure in Kentucky and other states. Part I will outline the history of competence as a critical element of a criminal defense. Part II will distinguish the legal determination of competence from the clinical determination of capacity. Part III will address the due process and equal protection concerns associated with involuntary hospitalization or commitment for incompetency to stand trial. Part IV will explore Texas’s recent statutory scheme aimed at addressing the loophole in criminal procedure created by non-restorable competence. Part V will consider a pending criminal case against a Kentucky defendant who has been repeatedly classified as incompetent to stand trial and unlikely to regain competence. Part VI will examine proposed legislation and other measures to assure both due process to defendants and public safety to community-members. Lastly, Part VII will propose the simplest, least expensive criminal procedural reform in Kentucky’s history.

I.               The History of Competence

 

As early as 1845, courts recognized the need for unique legal treatment of those designated criminally insane.[17] In the Massachusetts case The Matter of Josiah Oakes, Judge Shaw found the “great law of humanity” to be sufficient legal basis for involuntary hospitalization of an insane person who presented a danger to himself or others.[18] Further, Shaw found that the restraint could continue for an indefinite period of time—as long as the restraint was necessary to protect the defendant or others.[19] Shaw’s theory of indefinite restraint and imprisonment of the criminally insane was popular among the states.[20] By 1890, every state in the U.S. operated some form of “publicly-supported mental hospital,”[21] the earliest being Virginia’s Eastern State Hospital, established in 1773.[22]

The process by which a person was relegated to these facilities varied: a husband could have his wife committed,[23] a family member could recommend commitment, or a judicial decision could require commit.[24] These early involuntary commitments were subject only to the requirement that the individual would benefit from treatment.[25] As cases alleging wrongful commitment began to arise commonly in the late 1800s, institutions began identifying more formal criteria for admission.[26] States soon began to enact stricter methods for commitment,[27] but in criminal cases, a finding that a defendant lacked the mental competence to stand trial often resulted in an indefinite, automatic commitment to an asylum or psychiatric treatment facility.[28]

Beginning in 1960, a series of Supreme Court decisions began to create guidelines for the legal treatment of criminal defendants whose competence was in question.[29] In Dusky v. U.S., the Court held that a defendant's competence is determined by his “present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational and factual understanding of the proceedings against him.”[30] The Court also distinguished mere orientation and recollection from legal competence to stand trial.[31] In 1975, the Court further held that a defendant must also be able to assist in preparing his defense in order to be found competent to stand trial.[32]

As courts adopted higher standards for involuntary and criminal commitments, Congress passed the Community Mental Health Act, moving funding out of state mental hospitals and into smaller treatment centers, intending to allow those housed in state mental hospitals to be treated quickly and released back into society.[33] In combination with the release of the first anti-psychotic drug, this legislation enabled many mentally ill patients to return to their homes.[34] Those with the most severe mental conditions, however, were left without treatment options.[35]

Between 1970 and 2014, the U.S. has experienced a 77% decline in total capacity for 24-hour psychiatric treatment.[36] This decline can be attributed to the increase in outpatient treatment and the push for deinstitutionalization.[37] Instead of returning home, many of these patients were “transinstitutionalized” into incarceration.[38] Between four to seven percent of the growth in U.S. incarceration rates between 1980 and 2000 is attributable this lack of psychiatric care.[39] To its shame, the three largest mental health treatment facilities in the U.S. are the Cook County Jail, Los Angeles County Jail, and Rikers Island.[40]

 

II.              Competence and Capacity: Legal and Clinical Differentiation

 

Kentucky’s problems in dealing with IST defendants begin with the designation of incompetence itself. In 1966, the U.S. Supreme Court held that if a district court does not allow an inquiry into a defendant’s competence to stand trial, the court deprives the defendant of his “constitutional right to a fair trial.”[41] The appointed expert, however, can only provide advisory information to the judge who makes the ultimate competency assessment.[42]  Kentucky statutory law provides little discussion of what constitutes competence to stand trial.[43] Although the Supreme Court has provided instruction on the theoretical basis of competence, little guidance is given for situations in which a judge might disagree with the psychiatric appointee’s recommendation. 

When making a ruling on the defendant’s competence, the court is not limited to specific criteria to consider.[44] Some federal courts have considered factors like inability to communicate intelligently,[45] family history of mental health issues,[46] self-defeating behavior,[47]hallucinations,[48] prior use of antipsychotic medications,[49] and more. A mental disorder alone is not dispositive in showing incompetence.[50] The judicial determination of competence revolves around one legal question—whether continuing with judicial proceedings affords the defendant a reasonable opportunity to participate in his defense.[51]

When the court disagrees with the assessment performed by the appointed psychiatrist or psychologist, the court is at liberty to act against the expert’s recommendation.[52] Because the current legal framework grants wide latitude and little concrete guidance on the specific criteria of a competency analysis, judges have become dependent upon appointed experts for diagnoses of defendants’ mental deficits.[53] However, a study conducted on competence-to-stand-trial assessments in Hawaii found that judges are more likely to rule a defendant incompetent, rather than competent, after hearing conflicting expert testimony on competency.[54]

The determination of the restorability of a defendant’s competence is even more convoluted. In some states, the court assesses the likelihood of restoration of a defendant’s competence within a statutorily specified timeframe; in other states, the court decides if restoration is likely in the foreseeable future.[55] In Texas, restoration is predicated on guidance from the facility where the defendant was being treated. [56]

The greatest disparity between the legal and clinical distinctions occurs when an IST defendant whose competence is unlikely to be restored is relegated to involuntary commitment in a psychiatric treatment facility. In Kentucky, this issue manifests in the difference between the legal criteria for incompetence and the legal criteria for involuntary hospitalization.[57] A defendant may be found incompetent by the courts, but his incompetence does not necessarily make him a candidate for involuntary hospitalization.[58] Although the statutes allow an IST defendant to be committed into a psychiatric facility for hospitalization,[59] they do not allow the facility to continue such a hospitalization once they deem the defendant to be unlikely to benefit from treatment.[60] By creating the legal category of “non-restorable competence,” the Kentucky legislature has created a class of criminal defendants whom they cannot legally jail, try, or commit. Any solution offered to this issue will require a standardization of language and a revision of the statutes to create a cohesive plan of both legal and psychiatric treatment for such IST defendants.

 

III.            Due Process and Equal Protection Concerns

 

In Pate v. Robinson, the Supreme Court made a definitive ruling that to try or sentence a defendant who is incompetent to stand trial is a denial of due process of law.[61] With substantive due process, a defendant has the right to not be prosecuted while incompetent.[62] With procedural due process, a defendant has the right to a reasonable examination of his competency to stand trial.[63] However, if a defendant’s competence is found unlikely to be restored, the application of due process to his circumstances becomes less clear. 

Nearly a decade after Pate, in Jackson v. Indiana, the Court addressed the issue of competence that is unlikely to be restored.[64] Theon Jackson, a deaf-mute defendant accused of two thefts amounting to less than $10, was found incompetent to stand trial after a court-appointed psychiatrist testified that no state facilities were capable of developing Johnson’s communication abilities.[65] Additionally, experts testified that even if Jackson were to gain “minimal communication skills,” he would still lack the mental capacity necessary to be found competent to stand trial.[66]Jackson was committed by the lower court until he could be deemed “sane.”[67] On appeal, Jackson’s counsel argued that this commitment violated the Fourteenth Amendment’s Equal Protection Clause[68] and Due Process Clause.[69]

Jackson’s claim that he was deprived of equal protection of the law stems from Indiana’s standards for commitment and release of criminal defendants in comparison to the commitment and release of individuals with mental illness who are undergoing civil commitment proceedings.[70]The Court agreed with Jackson, finding that the State’s standard for commitment of criminal defendants was more lenient than the standard for commitment of mentally ill individuals under the civil commitment statute.[71] Under both standards, commitment required examination by two doctors, a judicial hearing with opportunity for cross-examination, opportunity to introduce evidence, and opportunity for appellate review.[72]However, the standard for commitment of a criminal defendant only required the State to show that Jackson was incompetent to stand trial.[73] Also, the State applied a more stringent standard for release for those committed as criminal defendants than those committed for mental illness.[74] Under the civil commitment statute, a person committed for mental health reasons could be released as soon as the head of the commitment facility believed that their condition no longer justified commitment.[75] A criminal defendant who had been committed, however, could only be released from his commitment after a “substantial change for the better in his condition.”[76]

In Jackson’s case, the standard for release was especially stringent, considering experts had testified that he was likely unable to ever regain competence.[77] The Court upheld Jackson’s equal protection challenge, finding that that the leniency in the standard for commitment of criminal defendants and the stringency of the standard for release of committed criminal defendants deprived Jackson of equal protection of the laws.[78]

Further, Jackson contended that his right to due process of the law was violated by his indefinite commitment on the sole account of his incapacity to stand trial.[79] By recognizing that Jackson’s competence was unlikely to be restored, but still committing him until he regained sanity, the district court’s commitment was a life sentence.[80] The Court agreed with Jackson, holding that a criminal defendant may only be held a length of time reasonable to determine his competence and the likelihood of restoration of competence.[81] If competence is deemed unlikely to be restored, the state must either drop the charges against the defendant or commit him under the state’s civil commitment procedures.[82] If the defendant’s competence is deemed likely to be restored, his commitment must be beneficial in advancing his competence.[83] Thus, if the defendant is not progressing or not able to progress toward competence, his remaining in state criminal custody is improper.[84]

A more recent attack on modern competence restoration schemes turns on a defendant’s deprivation of protections afforded by the Americans with Disabilities Act.[85] In Olmstead v. L.C., the Supreme Court held that Title II of the ADA prohibits discrimination on the basis of disability[86]and requires States to allow individuals with mental disabilities to be treated in community-based programs if a State treatment professional has deemed community placement appropriate, the transfer is unopposed by the individual, and the placement can be reasonably accommodated by the State.[87]

In adopting jail-based competency restoration programs,[88] several states have begun placing IST defendants in jail, regardless of the seriousness of their alleged crime or the danger they pose to themselves or others.[89] Because many of these defendants would benefit from treatment in an integrated, community-based setting due to their mental disability, their assignment to jail-based competency restoration programs constitutes discrimination on the basis of disability.[90] Broadly placing IST defendants into jail-based competency restoration programs neglects the ADA’s mandate for the least restrictive treatment setting necessary, and states that continue to disregard this requirement risk being found in violation of the ADA, regardless of intent.[91]

 

IV.            Case Study: Texas

 

In 2007, Advocacy, Inc., on behalf of a group of defendants deemed incompetent to stand trial, filed suit against the Texas Department of State Health Services, arguing that the defendants’ due process rights were violated by the State’s policy of holding IST defendants in jail, without treatment, until psychiatric treatment facility beds became available.[92] Obtaining a bed in such a facility often took six months or longer.[93] After the aforementioned case was decided on jurisdictional grounds, a Texas state court considered the issue and ordered that IST defendants be given a bed within 21 days from the day he receives notice of his commitment. [94]  

However, in 2014, the Texas Court of Appeals overturned this decision[95] and IST defendants were once again forced to remain in jail for months before placement in psychiatric treatment facilities.[96] Texas lawmakers’ solution to this dilemma was the creation of jail-based competency restoration programs.[97] In response, Texas lawmakers began to consider an alternative option for competency restoration in IST defendants—jail-based competency restoration programs.[98]

During the 2013 Texas legislative session, legislators passed a bill that utilized state funds to create jail-based competency restoration pilot programs,[99] but the program was never implemented due to lack of personnel.[100] Funding for the program was renewed in 2015, but implementation was further delayed by the “lack of a strong competitive pool” of bids for the contract for jail-based competency restoration services.[101] In 2016, the Texas Judicial Council created a Mental Health Committee to explore the effectiveness and cost of various measures to determine the “best practices” of civil and criminal justice for those with mental illness, including IST defendants.[102] The committee’s findings included a recommendation that current state law be changed to allow for alternative competency restoration settings, including jail-based programs.[103] In 2017, the Texas legislature approved an appropriation for a pilot program for a third time.[104] In addition to the appropriation, but without performing a pilot, lawmakers passed S.B. No. 1326, allowing for the use of jail-based competency restoration programs as an alternative to outpatient competency restoration programs or inpatient hospital competency programs.[105]

The Texas Health and Human Services Commission awarded $1.9 million of the 2017 appropriation to four Texas jail-based competency restoration programs.[106] The services the programs provided included multidisciplinary treatment, cognitive behavioral therapy, coordination of general healthcare, competency restoration education, and interviewing .[107] During 2019, these programs served 346 patient-defendants and restored competency to over 30% of those patient-defendants.[108] Of those whose competence was not restored, some were sent to state hospitals and others had their charges dropped and were released.[109] Upon review, a representative of the pilot program at Lubbock considered the programs successful and was pleased with the program’s progress.[110]

The Texas legislation allowing for jail-based competency restoration would be toothless were it not for another law passed in the 2007 legislative session: Article 46B.0095.[111] This statute includes a provision allowing an IST defendant to be committed to a mental hospital, inpatient competency restoration program, or jail-based competency restoration program for a period of time up to the length of the maximum term for the offense of which the defendant is accused.[112] If the court has found that a defendant’s competence is unlikely to be restored, this provision allows for a de facto finding of guilt—a maximum sentence for a crime for which the defendant has neither been tried nor found guilty. In essence, this is a sentence punishing the crime of incompetence. 

By imposing the sentencing term from the patient-defendant’s accused crime, the Texas legislature has circumvented the Court’s decision in Jackson v. Indiana that held that the indefinite commitment of an IST defendant is a violation of due process.[113] However, the Texas statute creates a constitutional issue by affording a de facto sentence to a defendant who has neither been tried nor found guilty.[114] This violation of procedural due process is particularly offensive because it preys upon defendants who do not have the practical capacity to question the statute’s constitutionality. 

To date, only one case has addressed Texas’s practice of applying statutory sentences to civil commitments. In Reinke v. State, Mr. Reinke, a defendant declared by the court to be incompetent to stand trial, was committed to a mental health facility.[115] On appeal, Mr. Reinke challenged the lower court’s use of punishment enhancements to increase his commitment from 20 years (the statutory maximum for attempted murder, the crime of which he was accused), to 99 years.[116] The court held that the use of enhancements was improper, and that the authorizing statute’s language[117]did not provide for the use of sentence enhancements.[118] The court remanded the case to the district court for readjustment of Mr. Reinke’s commitment to 20 years.[119]

At present, six states allow courts to involuntarily commit IST defendants for the maximum sentence for the crime of which they are accused.[120] Other states employ varying standards, including commitment for the “two-thirds of the authorized maximum term of imprisonment for the highest class felony charged”[121] and “three years” except when charged with murder.[122]

 

V.             An Urgent Need for Change

 

The problem with Kentucky’s law regarding incompetence is highlighted in the case of Cane Madden. In August  2019, a Louisville, Kentucky court found Madden incompetent to stand trial for a charge of burglary from May 2019, and he was involuntarily committed to Central State Hospital.[123] But because administrators at Central State deemed Madden to be unresponsive to treatment,[124] he was released less than 24 hours later.[125] In August 2019, an eight-year-old girl in Louisville was hit in the head with a shovel, fracturing her skull, and raped.[126] Madden was seen in the area before and after the assault, and he was arrested by Louisville police during the early hours of the morning.[127] Madden revealed to officers explicit details of the assault and rape.[128]

When Madden appeared in court, his attorney requested that the charges against him be dropped, citing a past criminal matter against Madden were charges dropped due to incompetence.[129] Judge O’Connell denied the motion and scheduled a hearing, allowing the Kentucky legislature the opportunity to amend the statutory provisions governing IST defendants with no substantial likelihood of regaining competence.[130]

Madden’s case has garnered national attention,[131] and Kentucky legislators encountered outrage from the community, including a petition with over 11,000 signatures demanding that Madden not be released.[132] On February 20, 2020, Senator Morgan McGarvey, a Democrat from Kentucky’s 19th District, filed Senate Bill 188.[133] The bill, co-sponsored by Senator Julie Raque Adams (a Republican from Kentucky’s 36thDistrict) and Senator Denise Harper Angel (a Democrat from Kentucky’s 35th district),[134] would enable certain violent criminal IST defendants, with no substantial probability of attaining competency, to be placed on judicial commitment.[135] Under this form of commitment, a judge appoints a guardian ad litem to the defendant who is then tasked with advising and representing the defendant at all legal proceedings.[136]

Although Senate Bill 188 proposed solutions, it also introduced a myriad of constitutional, procedural, and logistical problems. The first problem encountered is with the appointment of a guardian ad litem to an IST defendant.[137] The use of a guardian ad litem in representing a criminal defendant is unprecedented in the United States. To appoint a guardian ad litem to a criminal defendant is to acknowledge his incompetence, and such an acknowledgement mandates that the criminal proceedings be halted until competence is regained.[138] Regardless of the advocacy a guardian ad litem might provide, the defendant still does not have the ability to understand the proceedings against him, and that is the crux of his substantive due process rights.[139] The ability of a defendant to participate in his defense is crucial.[140] The appointment of a guardian ad litem simply does not comport with the spirit or letter of the law requiring a court to halt proceedings against an incompetent defendant.

Further, Senate Bill 188 called for the application of a “clear and convincing evidence” standard of proof in the competency hearing the bill prescribes.[141] Under current Kentucky law, the standard of proof at a competency hearing is the same as that for all evidentiary hearings.[142] This standard is in compliance with Supreme Court precedent, which clearly prohibits a state from requiring a defendant’s incompetence to be proven by a “clear and convincing evidence” standard, because it would allow a state to try a defendant who is more likely incompetent than competent, a clear violation of due process.[143] For this reason, if enacted, S.B. 188 would be susceptible to constitutional challenges on the standard of proof it seeks to impose.

Lastly, Senate Bill 188 implicitly authorized indefinite commitment of IST defendants.[144] After a defendant has been committed, he must undergo periodic review hearings to reassess competency.[145] During the first year of commitment, the defendant’s competence shall be reviewed every three months; during the second year of commitment, the defendant’s competence shall be reviewed every six months; and during subsequent years, the defendant’s competence shall be reviewed annually.[146] In fewer words, the proposed bill authorized the commitment of an IST defendant until the end of his life or until he regains competence, whichever happens sooner.[147] This indefinite commitment is in clear defiance of the Court’s holding that such commitments resulting from incompetence to stand trial are in violation of the Fourteenth Amendment’s guarantee of due process.[148]

Before Senate Bill 188 could be approved by the Senate Health, Welfare, and Family Services Committee, COVID-19 eclipsed the state’s legislative agenda.[149] The bill never reached the Senate floor for a vote.[150]

VI.            Closing the Loophole in Kentucky

 Community members, prosecutors, victims’ advocates, judges, and public defenders have all voiced opinions on how Kentucky’s laws might be amended in order to prevent situations like Madden’s from occurring. The suggestions carry varying levels of applicability, relevance, and constitutionality and are individually considered here.

Wendy Morris, Commissioner of the Kentucky Department for Behavioral Health, recently suggested that creation of more mental health courts could prevent exploitation of this loophole in Kentucky’s competency laws.[151] However, the jurisdiction of Kentucky’s mental health courts will require significant expansion. At present, none of Kentucky’s mental health courts accept defendants charged with violent felonies or sexual offenses.[152] Further, most mental health courts across the country do not provide services to IST defendants because involvement in such courts is supposed to be voluntary and participatory.[153] For these reasons, the institution of more mental health courts in Kentucky is unlikely to create a meaningful impact on the loophole at hand.

Another proposed solution is to add a provision to Kentucky’s statutes that allows for the involuntary commitment of an incompetent criminal defendant for a length of time up to the maximum statutory sentence for the crime of which he is accused.[154] This strategy is employed by a few other states and has weathered challenges thus far.[155] However, the implementation of such legislation is likely to be unpopular among mental health advocates who find this form of sentencing without trial or verdict to be an alarming threat to the constitutional rights afforded to criminal defendants.

Instead of committing IST defendants under KRS 202A.026 or KRS 202B.040, the legislature could create a third provision exclusively for criminal commitment. To pass such a law would, in effect, be to revive the age of the asylum, as these indefinitely committed criminals would require housing in forensic psychiatry facilities. If such a provision were to contain similar criteria to that of KRS 202A.026 and KRS 202B.040, the statute could experience challenges on the grounds of imposing unnecessary restraint on defendants and on the grounds of the Jackson v. Indiana ruling prohibiting indefinite commitment.[156]

If the criminal commitment statute created varied from those criteria set out in KRS 202A.026 and KRS 202B.040, however, the statute could be challenged for violation of the Equal Protection Clause. Equal Protection Clause violations like the one the court found in Jackson v. Indianacould be avoided by placing the same standards for commitment and release on criminal defendants that KRS 202A.026 and KRS 202B.040 place on those undergoing civil commitment and release proceedings.[157]

Kentucky is one of only three states which require in statute that a patient be likely to benefit from treatment in order to remain involuntarily committed in an inpatient facility.[158] If Kentucky were to change this requirement from mandatory criteria to permissive criteria, the problem of mental health administrators releasing dangerous, IST defendants with no substantial likelihood of restoration would likely be avoided. The statutory language “benefit from treatment” harkens back to the earliest days of involuntary commitment when such benefit comprised the sole criterion for commitment.[159] However, as Kentucky’s statutory scheme for commitments have undergone numerous revisions,[160] and include other criteria in step with the commitment statutes of most other states,[161] there is no longer a need for such an ambiguous nicety. The statutory provisions already in place, regarding the least restrictive care setting possible, and regarding a defendant’s threat of danger to self or others provide sufficient safeguards for the humane treatment of involuntarily committed psychiatric patients.

 

VII.          Conclusion: Rethinking Commitment Standards

 

The eyes of Kentuckians are upon the legislature as it attempts to both close this loophole in Kentucky’s law and determine the disposition of Cane Madden’s pending criminal charges. The implications of Kentucky’s action regarding incompetency will extend far beyond the case at hand, despite the limited impact the state’s legislature anticipates. Fiscal impacts aside, the legislation Kentucky enacts will reflect the esteem with which it regards public safety, accountability, and due process. 

Among the solutions offered here, the most feasible, wholistic option is the removal of “who can reasonably benefit from treatment” from the commitment criteria under KRS 202A and 202B. Under such circumstances, a defendant like Cane Madden could be civilly committed on the criteria that he is a danger to himself or others, and that such commitment is the least restrictive form of treatment available. Such commitment would end, then, not when the defendant achieved competence, but when he no longer posed a danger to himself or others. Although the United States Supreme Court has struck down statutes authorizing indefinite commitment for the reason of incompetence alone,[162] the Court has found that proof of dangerousness, in combination with incompetence, is sufficient grounds for the commitment of civil defendants.[163]

No Kentucky case law gives significant meaning to the phrase “can reasonably benefit from treatment.” The phrase is a remnant of the intake procedure of 17th century insane asylums, and has regularly been embedded within Kentucky’s commitment statutes. There is little risk to removing this criterion, but there is great protection to be gained from it. Without it, administrators of forensic psychiatry facilities must justify the release of IST defendants on either the grounds that they are no longer dangerous, or there is a less restrictive mode of treatment available to the defendant.[164]

This solution is most feasible because it does not require the creation of a new system of courts, it does not require the addition of a new classification of commitment, and it does not face inevitable constitutional challenge. It does, however, preserve the rights of IST criminal defendants and limit the court’s ability to commit them indefinitely for non-violent offenses. With the disposition of Cane Madden’s case hanging in the balance, it is essential that Kentucky lawmakers choose a course of statutory action that maximizes protection of the public and preservation of constitutional rights—and in this circumstance, the simplest solution just might be the best one. Deleting this element of commitment criteria could be the simplest, least-expensive, most popular criminal procedural reform in Kentucky’s history.


[1] J.D. Candidate, The University of Kentucky J. David Rosenberg College of Law (2021); B.S. in Community Communications and Leadership Development, University of Kentucky.

[2] Ky. R. Crim. P. 8.06 (West 2020).

[3] Id.

[4] Ky. Rev. Stat. Ann. § 504.100(1) (West 2020).

[5] Ky. Rev. Stat. Ann. § 504.100(3) (West 2020).

[6] Ky. Rev. Stat. Ann. § 504.090 (West 2019).

[7] See Jennifer Piel, Michael J. Finkle, Megan Giske, & Gregory B. Leong, Determining a Criminal Defendant’s Competency to Proceed With an Extradition Hearing, 43 J. Am. Acad. Psychiatry Law 201, 202 (2015).

[8] Ky. Rev. Stat. Ann. § 504.100(2) (West 2020).

[9] Ky. Rev. Stat. Ann. § 504.110(1) (West 2020).

[10] Ky. Rev. Stat. Ann. § 504.110(3) (West 2020).

[11] Ky. Rev. Stat. Ann. § 504.110(2) (West 2020).

[12] Ky. Rev. Stat. Ann. § 202A.026 (West 2020).

[13] Ky. Rev. Stat. Ann. § 202B.040 (West 2020).

[14] Id.; Ky. Rev. Stat. Ann. § 202A.026 (West 2020).

[15] See Ky. Rev. Stat. Ann. § 202A.026 (West 2020); Ky. Rev. Stat. Ann. § 202B.040 (West 2020).

[16] See generally Jason Riley & Chad Mills, Attorney Asks Judge to Dismiss Cane Madden’s Child Rape Case, WDRB.com (Oct. 18, 2019), https://www.wdrb.com/in-depth/attorney-asks-judge-to-dismiss-cane-madden-s-child-rape/article_0d3d533c-f1da-11e9-8ef6-b7ec86cdb9bb.html [https://perma.cc/9SGY-NQAS] (describing the loophole in Kentucky’s involuntary hospitalization statutes).

[17] See generally Matters of Josiah Oakes, 8 Law Rep. 123 (Mass. 1845) (holding that criminally insane defendants can be involuntary hospitalized if they are deemed a danger to themselves or others).

[18] Id. at 123.

[19] Id.

[20] See Frederic Garver, The Subvention in the State Finances of Pennsylvania 229 (1919).

[21] Early Psychiatric Hospitals & Asylums, U.S. Nat’l Libr. of Med., https://www.nlm.nih.gov/hmd/diseases/early.html [https://perma.cc/T54N-6KZE].

[22] The History of Eastern State, Virginia.gov, http://www.esh.dbhds.virginia.gov/History.html [https://perma.cc/WJK8-AXX5].

[23] Maureen Dabbagh, Parental Kidnapping in America: An Historical and Cultural Analysis 36 (2012). 

[24] Substance Abuse and Mental Health Services Admin., Civil Commitment and the Mental Health Care Continuum: Historical Trends and Principles for Law and Practice 3 (2019), available at 

https://www.samhsa.gov/sites/default/files/civil-commitment-continuum-of-care_041919_508.pdf [https://perma.cc/GYG3-W8NN].

[25] Id.

[26] Id.

[27] See id. (“Following a series of celebrated cases in the late 1800’s alleging wrongful commitment, procedures for commitment (but not legal criteria) were tightened.”).

[28] See Douglas R. Morris & Nathaniel J. DeYoung, Long-Term Competence Restoration, 42 J. Am. Acad. Psychiatry L. 81 (2014).

[29] 18 U.S.C. § 4244 (2020); 18 U.S.C. § 4241 (2020); 18 U.S.C. § 4246 (2020).

[30] Dusky v. United States, 362 U.S. 402, 402 (1960). 

[31] Id.

[32] Drope v. Missouri, 420 U.S. 162, 171 (1975).

[33] Michelle R. Smith, Kennedy’s Vision for Mental Health Never Realized, Associated Press (Oct. 20, 2013), https://apnews.com/4423a7a8da484b7fb0cb29dfdd1ddb96 [https://perma.cc/SWW5-G8WZ]. However, Kennedy is not all to blame. See Samantha Raphelson, How the Loss of U.S. Psychiatric Hospitals Led to a Mental Health Crisis, NPR (Nov. 30, 2017, 1:15AM), https://www.npr.org/2017/11/30/567477160/how-the-loss-of-u-s-psychiatric-hospitals-led-to-a-mental-health-crisis [https://perma.cc/XC28-FUP5] (explaining that a provision in Medicaid prevents the program from covering long-term care in state institutions).

[34] Smith, supra note 33.

[35] Id.

[36] Ted Lutterman, Robert Shaw, William Fisher & Ronald Manderscheid, Trend in Psychiatric Inpatient Capacity, United States and Each State, 1970 to 2014 29 (2017).

[37] Megan Testa & Sara G. West, Civil Commitment in the United States, 7 Psychiatry 30, 33 (2010).

[38] Steven Raphael & Michael A. Stoll, Assessing the Contribution of the Deinstitutionalization of the Mentally Ill to Growth in the U.S. Incarceration Rate, 42 J. Legal Stud.187, 189, 219 (2013).

[39] Id. at 190.

[40] Smith, supra note 33.

[41] Pate v. Robinson, 383 U.S. 375, 385 (1966).

[42] Ky. Rev. Stat. Ann. § 504.100 (West 2020).

[43] See Ky. Rev. Stat. Ann. § 504.090 (West 2020) (stating that incompetent defendants cannot stand trial but does not define what it means to be incompetent).

[44] See Ky. Rev. Stat. Ann. § 504.110 (West 2019) (listing the procedure for judicial determinations of incompetence)

[45] United States v. Nichelson, 550 F.2d 502, 504 (8th Cir. 1977).

[46] Id.

[47] Torres v. Prunty, 223 F.3d 1103, 1109 (9th Cir. 2000).

[48] Tiller v. Esposito, 911 F.2d 575, 577 (11th Cir. 1990).

[49] Cowley v. Stricklin, 929 F.2d 640, 641 (11th Cir. 1991).

[50] Wolf v. United States, 430 F.2d 443, 445 (10th Cir. 1970).

[51] Barry W. Wall et. al., AAPL Practice Resource for the Forensic Psychiatric Evaluation of Competence to Stand Trial, 46 J. Am. Acad. Psychiatric L. S1, S30 (2018).

[52] Randy K. Otto, Competency to Stand Trial, 2 Applied Psych. Crim. Just. 82, 84 (2006) (“Competence is ultimately a legal issue that is to be decided by the legal decision maker.”).

[53] David Collins, Re-Evaluating Competence to Stand Trial, 82 L. & Contemp. Probs. 157, 176 (2019).

[54] W. Neil Gowensmith, Daniel C. Murrie & Marcus T. Boccaccini., Field Reliability of Competence to Stand Trial Opinions: How Often Do Evaluators Agree, and What Do Judges Decide When Evaluators Disagree?, 36 L. & Hum. Behav. 130, 135 (2012).

[55] Grant H. Morris & J. Reid Meloy, Out of Mind? Out of Sight: The Uncivil Commitment of Permanently Incompetent Criminal Defendants, 27 U.C. Davis L. Rev. 1, 10 (1993).

[56] Tex. Code Crim. Proc. Ann. art. 46B.079 (West 2020).

[57] Compare Ky. Rev. Stat. Ann. § 504.100 (West 2020) (discussing the appointment of mental health experts to determine defendant competency), with Ky. Rev. Stat. Ann. § 202B.040 (West 2020) (listing the criteria for a intellectually disabled defendant to be involuntarily committed), and Ky. Rev. Stat. Ann. § 202A.026 (West 2020) (listing the criteria for a mentally ill defendant to be involuntarily committed).

[58] Ky. Rev. Stat. Ann. § 202A.026 (West 2020); Ky. Rev. Stat. Ann. § 202B.040 (West 2020).

[59] Ky. Rev. Stat. Ann. § 504.110 (West 2020).

[60] Ky. Rev. Stat. Ann. § 202A.026 (West 2020) (defendant must “reasonably benefit” from treatment to be legally hospitalized involuntarily); accord Ky. Rev. Stat. Ann. § 202B.040 (West 2020).

[61] Pate v. Robinson, 383 U.S. 375, 378 (1966); see also United States v. Gonzalez-Ramirez, 561 F.3d 22, 28 (1st Cir. 2009) (“A defendant’s due process right to a fair trial includes the right not to be tried, convicted or sentenced while incompetent.”).

[62] David W. Beaudreau, Due Process or "Some Process"? Restoring Pate v. Robinson's Guarantee of Adequate Competency Procedures, 47 Cal. W. L. Rev. 369, 370–71 (2001).

[63] Id.

[64] Jackson v. Indiana, 406 U.S. 715 (1972).

[65] Id. at 717–19.

[66] Id. at 719.

[67] Id.

[68] Id. 

[69] Id.

[70] Id. at 723.

[71] Id. at 730.

[72] Id. at 727.

[73] Id.

[74] Id. at 728–29.

[75] Id. at 728.

[76] Id. at 729.

[77] Id. at 719.

[78] Id. at 730.

[79] Id. at 719.

[80] Id. 

[81] Id. at 738.

[82] Id.

[83] Id.

[84] See id.

[85] Alexandra Douglas, Caging the Incompetent: Why Jail-Based Competency Restoration Programs Violate the Americans with Disabilities Act Under Olmstead v. L.C., 32 Geo. J. Legal Ethics 525, 528 (2019).

[86] 42 U.S.C. § 12132 (2019).

[87] Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 607 (1999)

[88] See infra Part IV.

[89] See Douglas, supra note 85.

[90] Olmstead, 527 U.S. at 597.

[91] See Samuel R. Bagenstos, The Past and Future of Deinstitutionalization Litigation, 34 Cardozo L. Rev. 1, 32 (2012).

[92] Lakey v. Taylor ex rel. Shearer, 278 S.W.3d 6, 11 (Tex. Ct. App. 2007); Brian Chasnoff & Melissa Fletcher Stoeltje, Texas 49th in Mental Health Funding, San Antonio Express-News (Nov. 1, 2010), https://www.mysanantonio.com/news/local_news/article/Texas-49th-in-mental-health-funding-780070.php [https://perma.cc/29SW-UZRZ].

[93] Lakey, 278 S.W.3d at 12.

[94]  Lakey v. Taylor, 435 S.W.3d 309, 316 (Tex. Ct. App. 2014).

[95] Brian D. Shannon, Competency, Ethics, and Morality, 49 Tex. Tech. L. Rev. 861, 872 (2017).

[96] Keri Blakinger, Lack of Beds for Inmates Needing Mental Health Help, Houston Chron. (Oct. 10, 2017), https://www.houstonchronicle.com/news/article/Lack-of-beds-for-inmates-needing-mental-health-12268349.php [https://perma.cc/Z5T7-GFRC].

[97] Hogg Found. for Mental Health, Texas 83rd Legislative Session: Summary of Mental-Health Related Legislation 1, 10 (2013).

[98] Brandi Grissom, Proposal: Allow Private Firms to Provide Mental Health Services in Jails, Tex. Trib. (Apr. 9, 2013), http://www.texastribune.org/2013/04/09/proposal-allow-private-mental-health-services-jail/ [https://perma.cc/2LY9-Q5DB].

[99] Act of Sept. 1, 2013, ch. 797, § 2, 2013 Tex. Sess. Law Serv. 1, 1–2 (West) (codified as Tex. Code Crim. Proc. Ann. art. 46B.090)

[100] Amanda Wik, Alternatives to Inpatient Competency Restoration Programs: Jail-Based Competency Restoration Programs 1, 7 (2018).

[101] Health & Hum. Services Comm’n, Report on the Jail-Based Competency Restoration Pilot Program 1, 5 (2017).

[102] Tex. Jud. Council, Mental Health Committee Reports & Recommendations 1, 7 (2016).

[103] Id. at 6. 

[104] Act of Sept. 1, 2017, ch. 748, § 29, 2017 Tex. Sess. Law Serv. 1, 33–36 (West) (codified as amended at Tex. Code Crim. Proc. Ann. art. 46B.090).

[105] Act of Sept. 1, 2017, ch. 748, § 14, 2017 Tex. Sess. Law Serv. 1, 17–19 (West) (codified as amended at Tex. Code Crim. Proc. Ann. art. 46B.073).

[106] LaQuinta Swan & Lucrece Pierre-Carr, Texas Competency Restoration: Outpatient and Jail-Base 1, 13 (2019).

[107] Id. at 14.

[108] See id. at 15.

[109] Id. at 9.

[110] Tex. Jud. Comm’n on Mental Health, Meeting Notebook 1, 19 (2019).

[111] Tex. Code Crim. Proc. Ann. art. 46B.0095 (West 2017) (previously codified as Tex. Code. Crim. Proc. Ann. art. 46B.009). 

[112] Id.

[113] Jackson v. Indiana, 406 U.S. 715, 731 (1972) (“[W]e . . . hold that Indiana’s indefinite commitment of a criminal defendant solely on account of his incompetency to stand trial does not square with the Fourteenth Amendment’s guarantee of due process.”).

[114] See art. 46B.0095. 

[115] Reinke v. State, 348 S.W.3d 373, 375 (Tex. Ct. App. 2011).

[116] Id.

[117] Tex. Code. Crim. Proc. Ann. art. 46B.0095 (West 2020).

[118] Reinke, 348 S.W.3d at 381 (interpreting Tex. Code. Crim. Proc. Ann. art. 46B.0095 (West 2020)).

[119] Id. (failing to show any indication that Mr. Reinke’s attorney raised the issue that the commitment itself may be a violation of Mr. Reinke’s procedural due process rights: an issue of constitutionality that Texas courts have not yet been faced with respect to this statutory scheme).

[120] La. Code Crim. Proc. Ann. art. 648 (2017); N.D. Cent. Code Ann. § 12.1-04-08 (West 2013); S.C. Code Ann. § 44-23-460 (2011); S.D. Codified Laws § 23A-10A-15 (2020); Tex. Code Crim. Proc. Ann. art. 46B.0095 (West 2017); Utah Code Ann. § 77-15-6 (West 2018).

[121] N.Y. Crim. Proc. Law § 730.50 (McKinney 2013).

[122] Minn. Stat. Ann. § 20.01 (West 2020) (not specifying the time frame for commitment for a defendant accused of murder). Courts have generally upheld these qualified statutory commitments, with the exception of a Massachusetts statute that was held in violation of due process when it authorized commitment for the maximum time of imprisonment that person would serve before becoming eligible for parole for their most serious charge. Sharris v. Commonwealth, 106 N.E.3d 661 (Mass. 2018). Because the Massachusetts statutory scheme denies parole eligibility to those serving a life sentence for first degree murder, the Massachusetts Supreme Court held that the application of this statutory commitment to an IST defendant accused of first-degree murder amounted to an indefinite commitment and a violation of substantive due process. Id. at 664; see Mass. Gen. Laws Ann. ch. 123, § 16 (West 2015); see also Mass. Gen. Laws. Ann. ch. 265, § 2 (West 2014).

[123] Jason Riley & Chad Mills, ‘Every Prosecutor’s Nightmare’: Sex Assaults Highlight ‘Crazy Loophole’ Freeing Mentally Ill Defendants, WDRB.com (Aug. 25, 2019), https://www.wdrb.com/in-depth/sunday-edition-sex-assaults-highlight-crazy-loophole-freeing-mentally-ill/article_a4a498f2-c5bb-11e9-9284-ffe7e1349599.html [https://perma.cc/5KVF-GENR].

[124] See id.

[125] Id.

[126] Billy Kobin, Louisville Man Fractured 8-Year-Old’s Skull With a Shovel and Raped Her, Police Say, Courier Journal (Aug. 12, 2019, 4:34 PM), https://www.courier-journal.com/story/news/crime/2019/08/10/louisville-police-man-cane-madden-raped-8-year-old-fractured-her-skull-shovel/1975531001/ [https://perma.cc/DS2S-9HT6].

[127] Id.

[128] Id.

[129] Deni Kamper, Man Accused of Raping 8-Year-Old is Example of Crack in System, Lawmaker Says, WLKY.com (Oct. 25, 2019, 5:09 PM), https://www.wlky.com/article/man-accused-of-raping-8-year-old-is-example-of-crack-in-system-lawmaker-says/29591750# [https://perma.cc/H8SZ-BHQ5].

[130] See id.

[131] John Hirschauer, Kentucky’s Insane Civil-Commitment Policy, Nat’l Rev. (Oct. 24, 2019, 9:01 PM), https://www.nationalreview.com/2019/10/kentuckys-insane-civil-commitment-policy/ [https://perma.cc/P673-ZZ5R]; Josh Saunders, Man, 29, is Arrested for Raping an 8-Year-Old Girl After First Hitting Her Over the Head with a Shovel – Two Years After He Was Let Off On Another Sex Assault Charge, DailyMail.com (Aug. 12, 2019, 9:55 PM), https://www.dailymail.co.uk/news/article-7346203/Man-29-arrested-hitting-eight-year-old-girl-head-shovel-raping-her.html [https://perma.cc/RM7F-8E4T]; Dom Calicchio, Man Raped 8-Year-Old Girl After Hitting Her in Head with Shovel, Fracturing Her Skull: Police, Fox News (Aug. 10, 2019), https://www.foxnews.com/us/man-hit-8-year-old-girl-in-head-with-shovel-fracturing-her-skull-then-raped-her-police [https://perma.cc/GV23-6ARK].

[132] Denita Wright, California Neighborhood Residents Request the Non-Release of Cane Madden, change.org, https://www.change.org/p/senator-morgan-mcgarvey-california-neighborhood-residents-request-the-non-release-of-cane-madden [https://perma.cc/B67C-5WTS].

[133] S. B. 188, 2020 Reg. Sess. (Ky. 2020). 

[134] Senate Members by Name, KY. Gen. Assembly, https://apps.legislature.ky.gov/Legislators/smembers_alpha.html [https://perma.cc/8WS2-ZWK3]. Somewhat inexplicably, Senator Harper Angel is the only one of the bill’s sponsors whose district includes the location of Madden’s last alleged attack.

[135] Ky. S.B. 188. 

[136] Id.

[137] Id.

[138] See Pate v. Robinson, 383 U.S. 375, 378 (1966) (“[T]he conviction of an accused person while he is legally incompetent violates due process . . . .”).

[139] See Dusky v. United States, 362 U.S. 402, 402 (1960) (holding that test of competency is whether a defendant has reasonable ability to consult with his lawyer and reasonably comprehends the legal proceedings against him).

[140] See Drope v. Missouri, 420 U.S. 162, 172 (1975) (“[A] person whose mental condition is such that he lacks the capacity to . . . assist in preparing his defense may not be subjected to trial.”).

[141] Ky. S.B. 188.

[142] Chapman v. Commonwealth, 265 S.W.3d 156, 174 (Ky. 2007).

[143] Cooper v. Oklahoma, 517 U.S. 348, 369–70 (1996).

[144] See Ky. S.B. 188.

[145] Id.

[146] Id.

[147] Id.

[148] Jackson v. Indiana, 406 U.S. 715, 732 (1972).

[149] Jack Brammer & Daniel Desrochers, Beshear Gives Lawmakers 2 Options Amid Controversy Over Legislature Continuing to Meet, Herald Leader (Mar. 17, 2020, 8:25 PM), https://www.kentucky.com/news/coronavirus/article241261676.html.

[150] See Mills & Riley, supra note 123.

[151] Id.

[152] See Adult Mental Health Treatment Court Locator, Substance Abuse & Mental Health Services Admin., https://www.samhsa.gov/gains-center/mental-health-treatment-court-locator/adults?field_gains_mhc_state_value=KY [https://perma.cc/TKD7-EXVA].

[153] Michael Thompson, Fred Osher & Denise Tomasini-Joshi, Improving Responses to People with Mental Illnesses: The Essential Elements of a Mental Health Court 1, 5 (2007); Shelli B. Rossman et al., Criminal Justice Interventions for Offenders with Mental Illness: Evaluation of Mental Health Courts in Bronx and Brooklyn, New York 1, 45 (2012).

[154] See Tex. Code. Crim. Proc. Ann. art. 46B.0095 (West 2019).

[155] La. Code Crim. Proc. Ann. art. 648 (2017); N.D. Cent. Code Ann. § 12.1-04-08 (West 2013); S.C. Code Ann. Regs. § 44-23-460 (2011); Tex. Code. Crim. Proc. Ann. art. 46B.0095 (West 2017); Utah Code Ann. § 77-15-6 (West 2020); Wash. Rev. Code Ann. § 10.77.025 (West 2018).

[156] Jackson v. Indiana, 406 U.S. 715, 738 (1972).

[157] Id. at 727.

[158] Treatment Advoc. Ctr., State Standards Charts for Assisted Treatment Civil Commitment Criteria and Initiation Procedure 1, 4–11 (2011).

[159] Substance Abuse and Mental Health Services Admin., supra note 24.

[160] See Ky. Rev. Stat. Ann. § 202.012 (West 2020) (repealed 1976); Ky. Rev. Stat. Ann. § 202.027 (West 2020) (repealed 1976); Ky. Rev. Stat. Ann. § 202.060 (West 2020) (repealed 1976).

[161] Treatment Advoc. Ctr., supra note 158.

[162] See, e.g., Jackson v. Indiana, 406 U.S. 715, 731 (1972).

[163] Kansas v. Hendricks, 521 U.S. 346, 358 (1997).

[164] Ky. Rev. Stat. Ann. § 202A.026 (West 2021); Ky. Rev. Stat. Ann. § 202B.040 (West 2021).

American Moneymakers: The Future of Online Poker After PASPA

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Christian FarmerI

Introduction

Where competition and chance are found, those willing to gamble on the outcome are often present. In the 21st Century, many people have been enticed by online forms of gambling (known simply as “gaming”).2 Traditional forms of gambling, such as parimutuel horse betting, are available online, as well as new forms of gambling like Daily Fantasy Sports (DFS).[1]3 Games of chance and games of skill alike are at the fingertips of players. However, there is one particular game that is effectively banned from being played online: poker.

With the advent of the internet, online poker soon followed; the first real money game was played in 1998.[4] The online poker industry quickly boomed, highlighted by the success of its most storied figure, Chris Moneymaker.[5] In 2003, the aptly-named accountant and poker player became the first person to qualify for the gargantuan World Series of Poker tournament through an online qualifier—he would go on to win the tournament and the $2.5 million cash prize.[6] This spark led to the explosion of online poker in America and abroad.

While his unexpected victory bolstered the online poker industry, Congress made other plans when they passed the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA).[7] While the Act was not a direct ban of online poker per se, it effectively rendered the game unplayable in the United States by prohibiting financial institutions from allowing wire transfers to internet gambling sites.[8] The Act cited internet gambling as a “growing cause of debt collection problems for insured depository institutions and the consumer credit industry.”[9] However, online poker platforms continued to operate in the United States in direct defiance of the Act.[10] On April 15, 2011, deemed “Black Friday,” the industry was dealt a death blow when the Department of Justice indicted the three largest poker sites operating in the United States, causing them to leave the American market for fear of violating the UIGEA.[11] The industry crumbled in the United States.[12]

One of the most popular and illustrious forms of gambling is sports betting. Until 2018, sports betting had endured a similar ban in the United States under the Professional and Amateur Sports Protection Act (PASPA).[13] The Supreme Court’s landmark decision in Murphy v. NCAA reversed the Congressional ban on sports betting holding that PASPA is unconstitutional and giving states the authority to make sports betting legal within their borders.[14] In the years leading up to this decision, the national sentiment surrounding sports has become increasingly positive.[15] For example, in 2016, one survey found that “[o]f those who watched Super Bowl 50, 80% want to see the country’s current sports betting laws change.”[16] In the wake of this ruling, twenty states have now legalized sports betting and many other states have active legislation moving towards legalization.[17]

This Note will argue that the original concerns leading to the enactment of the UIGEA are outdated and unreasonable in light of the Supreme Court’s recent ruling in Murphy. With the defeat of PASPA, a way forward can and should be forged for legal online poker to return to its former prominence in America. Any discussion of American gambling post-Murphy will necessarily include a discussion of sports betting. Part I contains an initial overview of the UIGEA, including an analysis of case law surrounding the UIGEA. Part II will elucidate the circumstances surrounding the defeat of PASPA in Murphy and what impact that has on litigation surrounding the UIGEA. Part III will argue that legalization of online poker will bring greater government oversight and benefit players overall, as many players turned to unregulated offshore sites following Black Friday. Part IV will discuss the state of online poker today, including the benefits the game brings to the four states where online poker is currently legal. Part V will speculate on a possible path forward for states where online poker has been historically banned, utilizing Kentucky as an example. 

I.      Overview and Preliminary Refutations of the UIGEA 

Due to being outdated and unfairly restrictive of online poker, the efficacy of the UIGEA needs to be reconsidered. When PASPA was still valid, it imposed a nationwide ban on sports betting.[18] Conversely, the UIGEA does not alter, limit, or extend any Federal or State law “prohibiting, permitting, or regulating gambling within the United States.”[19] Instead, the Act prohibits those “engaged in the business of betting or wagering” from knowingly accepting funds of any kind “in connection with the participation of another person in unlawful internet gambling.”[20] Unlawful Internet gambling is defined as placing, receiving, or knowingly transmitting “a bet or wager by any means which involves the use . . . of the Internet where such a bet or wager is unlawful under any applicable Federal or State law” where “the bet or wager is . . . made.”[21] This definition would later be subject to multiple interpretations by the DOJ; more on that later.[22]

The UIGEA describes a “bet or wager” in part as “the staking or risking by any person of something of value upon the outcome of a contest of others, a sporting event, or a game subject to chance.”[23] The Act notably carves out exceptions for other gambling venues such as horse racing, intratribal gaming, securities exchanges, and fantasy sports.[24] It is important to reiterate that the Act does not explicitly ban online poker, but rather, it effectively bans players in the United States from depositing funds to these sites through financial institutions.[25]

While PASPA was inherently unconstitutional, the UIGEA is not. In Murphy v. NCAA, PASPA was deemed to have violated foundational principles of federalism and dual sovereignty, holding that the Act “‘regulate[s] state governments’ regulation’ of their citizens.”[26] However, the UIGEA notably does not regulate state governments’ regulation of their citizens; it does not alter or limit any existing Federal or State regulation on gambling.[27] The language within the Act is not inherently unconstitutional. But, the absence of certain words or phrases reveals important information about the UIGEA.

While the word “poker” or the phrase “online poker” is never explicitly mentioned in the Act, courts have largely considered poker as a “game subject to chance.”[28] In an overwhelming display of failure, the Act itself does not include any language aiding courts in the determination of whether a particular game should fall under the designation of being “subject to chance.”[29] Following the enactment of the statute, state courts were quickly faced with the question of determining whether games are subject to chance or not. Judges employed various tests aimed at solving this problem, one of the most oft utilized being the predominate-factor test.[30]

In Joker Club, a North Carolina Court of Appeals case, the court elucidates the predominate-factor test.[31] The court noted that “while all games have elements of chance, games which can be determined by superior skill are not games of chance.”[32] The court compares poker to games such as bowling and billiards, highlighting that “the instrumentality for victory is in each player’s hands and his fortunes will be determined by how skillfully he use[s] that instrumentality.”[33] In this court’s view, poker does not provide players with the instrumentalities needed for victory; chance takes this out of the player’s hands.[34] Further, the court reasoned that while a skilled player may have a statistical advantage, they are always subject to a turn of a card, which is an instrumentality beyond their control.[35] In Dent, the Superior Court of Pennsylvania, relied on Joker Club in their terse discussion of chance and skill, ultimately grafting Joker Club’s exact reasoning onto the facts of their case without much further consideration.[36]The ambiguity inherent in the UIGEA left trial courts with the burden of making important determinations on whether poker fell under the language of the statute or not.

Poker players who are more skilled and knowledgeable can certainly increase their chance of winning over less-skilled players by studying odds, playing stronger hands, and making quick determinations with the limited information available on the table at any given time.[37] However, courts have maintained that the game itself is ultimately predicated on chance.[38] This is likely due to an overall unfamiliarity with the mechanics of the game coupled with ambiguous statutory language. Because poker has historically been understood as a game which is “subject to chance,” it falls under the purview of the UIGEA. However, there is a strong argument to be made that any game may be interpreted as a game “subject to chance.” 

To begin, the phrase “subject to chance” is subject to many competing interpretations. It can be construed either quite liberally or quite narrowly. It is difficult for one to imagine a game which does not include some element which happens to be “subject to chance.” The strike of a golf ball, no matter how perfect, is subject to the chance that a gust of wind will cause the ball to miss its target ever so slightly.[39] Is the wind an instrumentality which is essential to the game of golf, yet “beyond the player’s control?” Clearly. Golf, like poker, is a game subject to chance. Under the reasoning of Joker Club, golf should also be considered a game of chance, not skill. This example highlights the shortcomings of the outdated and unclear statutory language employed in the UIGEA’s construction. 

The UIGEA’s prohibition on games “subject to chance” makes even less sense when posed with a list of legal, regulated games which are also “subject to chance.” For example, parimutuel horse betting, DFS, and most recently, sports betting, are all games which are able to be legalized and regulated by states if they so choose.[40] Employing the predominate-factor test leads to the realization that all three of these are subject to more chance than skill; the instrumentalities essential to these games are all out of the player’s control. The results of sports matches are wholly determined by the players in the particular game, not any bet placed on the contest. The accuracy of LeBron James’ jump shot is dependent on LeBron James, not a person sitting on their couch watching the game and betting on whether the shot will go in. Conversely, a poker player controls whether they choose to play the hand they are dealt as well as whether they would like to bet, and if so, how much. The poker player competes against other individual agents. However, online poker remains held hostage by the UIGEA. The argument that online poker should be effectively banned because it is “subject to chance” fails.

Another criticism of the UIGEA is that it unduly restrains citizens’ pursuit of happiness.[41] The restrictions of the Act limit citizens’ ability to spend their money how they so choose. It also requires citizens to adhere to the moral code of the State—the outdated paternalistic argument that the State is protecting its citizens by restricting them from internet gambling.[42] The UIGEA contains serious statutory and conceptual flaws, which will be discussed below. 

II.     What Does PASPA’s Defeat Signal for the UIGEA?

There is hope that the UIGEA will fall subject to a similar fate as PASPA. The Supreme Court’s decision in Murphy v. NCAA was the culmination of a long battle against PASPA.[43] The citizens of New Jersey ultimately voted for an amendment to the state constitution which allowed sports gambling to be conducted within its borders.[44] Multiple lawsuits were brought by the NCAA and three major sports organizations, eventually culminating in Murphy.[45] The plaintiffs argued that New Jersey’s legislature violated PASPA’s language which prohibited states from enacting laws authorizing sports betting.[46] In the majority opinion, Justice Alito stated that PASPA violated the anti-commandeering principle by dictating what the New Jersey legislature may or may not do.[47] After holding that no provision of PASPA was severable, it was no longer the law.[48]Unfortunately, the constitutional principles leading to the Supreme Court’s abrogation of PASPA do not transpose to the UIGEA. Thus, the decision in Murphy does not provide any corollary legal precedent which can be utilized.

However, the Supreme Court’s decision reveals the defeat of the rationale which originally supported the passing of PASPA in 1992. The same rationale which supported the former ban on sports gambling undergirds the current ban on online poker. Opponents reason that both are particularly addicting, especially to young people.[49] Both bans led to significant illegal activity which flew in the face of federal legislation. Reports from 2017 (before Murphy) indicated that an estimated amount of $150 billion annually was illegally wagered on sports while PASPA was still in effect.[50]Much like the era of Prohibition on alcohol, Americans have proven that they will continue to gamble despite federal regulation attempting to change their behavior.[51] The American spirit endures.

In years past, opponents of sports gambling included representatives from all four major professional sports organizations: the NBA (National Basketball Association), MLB (Major League Baseball), NFL (National Football League), and NHL (National Hockey League).[52] Interestingly, the NFL has now turned to partnering with major sports betting and DFS sites such as DraftKings.[53] The NBA has also come to partner with sports betting operators, even amidst infamous scandals of game fixing throughout its history.[54] Former opponents have come to be proponents. The growing acceptance of sports gambling signals hope for advocates of online poker. As states pursue legislation seeking to legalize sports gambling, it will provide the perfect venue for discussing the legalization and regulation of poker. Murphy signals a turning of the tides. If states are willing to consider legalizing sports betting, which is undoubtedly “subject to chance,” they should also consider legalizing online poker—arguably a game of skill.

III.   The State of Online Poker in America Today

The online poker industry has been in a constant state of development and fluctuation since its inception. Historically, violations of the UIGEA have relied on underlying violations of the Federal Wire Act of 1961.[55] The Wire Act makes it illegal to knowingly use a wire communication facility for the placing of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest.[56] Since its enactment, “the federal government repeatedly employed the Wire Act as a tool to prosecute individuals engaged in unlawful interstate gambling, including sports wagering and non-sports wagering.”[57] Once the internet age arrived, the government utilized the phrase “wire communication facility” to directly reach those using their computers and the internet in their transmissions.[58] Much like people use phones to contact their local bookie to place bets, people use computers to compete in online poker tournaments. The Department of Justice (DOJ) utilized the broad language of the Wire Act to gain control over the online gambling industry in the modern age.[59]

In a surprising move in 2011, the Department of Justice’s Office of Legal Counsel (OLC) released a memo regarding the Wire Act that led to major changes for online poker.[60] The OLC stated that “the Wire Act does not reach interstate transmission of wire communications that do not relate to a ‘sporting event or contest.’”[61] With these words, the DOJ seemingly lost its foothold for prosecutions unrelated to sports contests. Finally, the laws surrounding online gambling seemed clear and discernable. Relying on this newly printed memo, multiple states—Nevada, New Jersey, Delaware, and Pennsylvania—passed legislation legalizing online poker within their borders.[62]

The industry took one great stride forward, but shortly took two steps back. The OLC surprisingly reversed their 2011 opinion in a recent memo from 2018 regarding their interpretation of the Wire Act.[63] This opinion asserted that “all but one of the Wire Act’s four prohibitions go beyond sports wagering and extend to all internet gambling, including online casino games, poker, and lotteries.”[64] With the 2018 memo, states were again left in the dark on the federal legality of online poker. States that passed legislation regulating online poker have continued to operate despite the 2018 memo.[65] Unfortunately, they face the possibility that courts may adopt the DOJ’s interpretation and invalidate their legislation.[66] The relative ease with which the DOJ continues to interpret and reinterpret this provision is unsettling and may cause hesitation from states attempting to pass future legislation surrounding online gambling.

Nevertheless, a few states have moved forward in the midst of uncertainty. By 2014, three states had legalized online poker: Nevada, New Jersey, and Delaware.[67] Players located in these three states can legally play online poker through WSOP.com.[68] These states have fairly small populations: Nevada and Delaware are only the 35th and 45th most populous states respectively.[69] Therefore, to increase the overall health of the player pool, they signed an interstate agreement allowing them to consolidate the player pools.[70] This means that a poker player located in Nevada can compete online against a player in Delaware at any given time. Recently in 2017, New Jersey joined in this agreement, adding to the player population.[71] This partnership should continue to flourish as more states join the agreement.

Pennsylvania is relatively new to the online poker scene, passing legislation legalizing online gambling in 2017 in the midst of the OLC’s initial Wire Act interpretation.[72] Following a soft launch in late 2019, December brought the official launch of online poker in Pennsylvania through PokerStars.[73] The most prominent online poker site has partnered with Mount Airy Casino Resort to obtain their license to operate in Pennsylvania.[74] At this point, Pennsylvania has not joined the interstate agreement with the few other states allowing regulated online poker.[75] In the month of December alone, online poker generated $2.5 million in revenue in the state.[76] Analysts predict that the online market as a whole will continue to grow as more players move online in the years to come.[77]

As the industry matures and continues to develop, online poker will play a significant role in the ultimate success of gaming. As it stands, there are only six states with laws authorizing online poker.[78] The path to legalization looks different for many states, however there is hope that the law will catch up with the public consensus in due time. For citizens of most states, players must get creative in order to find a table to deal them in.

IV.   American Players Access Offshore Sites to

Play Online Poker Today

During Prohibition, those who desired a bit of a stronger drink than others had to come by that drink through alternative means.[79] However, the creativity and ingenuity of the American people ensured that liquor was readily available in the midst of its illegality.[80] Similarly, online poker remains under prohibitive regulation. Today, crafty online poker players must access offshore sites which are not under the purview of American regulation.[81]

There are numerous offshore sites offering online poker including Bovada and BetOnline which receive heavy traffic from American players.[82]The UIGEA failed to keep American players from simply accessing alternative websites at the click of a mouse and a few keystrokes. The overarching issue with a multiplicity of offshore sites is that players often struggle determining which ones to trust.[83] Additionally, players may use alternate means of funding their accounts, such as utilizing cryptocurrency, which is not backed by any regulated financial institution.[84] These difficulties underscore the need for further reconsideration of the UIGEA and its unintended consequences for American players.

One illustrious scandal occurred shortly after the passage of the UIGEA in 2007. A prominent site called Absolute Poker was founded in 2003 by a group of Montana fraternity brothers with no previous experience.[85] The company was moved to Costa Rica where it was able to operate without a legitimate gaming license.[86] After the exodus of established sites in America following the passage of the UIGEA, “Absolute Poker remained and became a legitimate contender in the market despite its rudimentary software.”[87] In 2007, players began noticing suspicious activity from one particular player named “Potripper” who was located in Costa Rica.[88] It was discovered that Potripper had access to every other player’s hole cards throughout the tournament through the use of a separate master account.[89] In poker, every piece of information is incredibly valuable and he had access to it all. This account would follow Potripper from table to table, revealing complete information on the cards of the other contestants.[90] The site was eventually shut down in 2011, resulting in a 100 percent loss of player funds.[91] Unfortunately, these stories are common, especially with players utilizing offshore sites. 

There is a myriad of solutions to this predicament, but some are more viable than others for the long-term success of online poker in America. It is abundantly clear that the UIGEA and the Wire Act have not worked to ban online gambling in America. One possible solution is inaction—the federal government could certainly continue allowing American players to send their money to offshore sites and incur difficulties using Bitcoin. This would avoid the problem of American financial institutions accepting funds associated with gambling. It would accomplish the letter of the law, but not accomplish the intended effect of enacting the UIGEA in the first place, which is to stop Americans from gambling online.[92] They will find a way to work around the strictures of the UIGEA. Another possible solution is for the DOJ to issue another clarifying memo regarding the Wire Act and the UIGEA. While this would provide states with a quick solution, uncertainty as to the enforcement of these provisions would yet remain. We cannot have another situation on an unregulated site such as the Potripper debacle. Realistically, there are two solutions that take precedent and are more viable over any others. 

First, the Department of Justice should repeal the UIGEA. States which have already offered regulated online poker to their citizens deserve to know their hard work will not be taken away from them at a moment’s notice by the Department of Justice’s interpretative memos. Many of the games the UIGEA sought to ban are subject to carve outs or other exceptions, which now includes sports betting.[93] It is only a matter of time before the language on online poker is chipped away as well, rendering the statute meaningless. This is one possible solution, but there is more that can be done.

Second, citizens should take action to show their state legislators that online gambling is here to stay. States should capitalize on these tax revenue streams as quickly as possible by implementing and maintaining infrastructure in order to accommodate the demand. With the defeat of PASPA, states can choose to offer sports betting.[94] Many states already allow parimutuel horse betting.[95] Daily Fantasy Sports are growing rapidly in many states.[96] Online poker should be available alongside these companions.

While there is no direct legal precedent supporting an immediate challenge of the UIGEA, there is still action to be taken. Of the two possible solutions, it would be more economically and politically efficient for the federal government to return the right to decide back to the individual states through a repeal of the UIGEA. Individual states are better suited to understand the desires of their citizens and the challenges that may come with implementation in their specific contexts. Moreover, with so many carve outs already in place for the various forms of gambling mentioned above, the UIGEA is merely a shell of what it was originally intended to accomplish. Its scope has narrowed to only effectively ban online poker and online casino games.[97] With a repeal, state legislatures would be able to act without fear that a simple DOJ interpretation may invalidate an entire piece of legislation. There must be a better environment for Americans to play online poker other than untrustworthy offshore websites often funded through backdoor cryptocurrency transactions. 

V.    An Example of a Path to Legalization: The Bluegrass State

State lawmakers must work against the broad federal laws in place if they want to pass legislation allowing online gambling—that is, a muddy interpretation of the Wire Act and confusion as to the DOJ’s enforcement of the UIGEA. The path to legalization will likely be more difficult for states which have not historically embraced online gambling and which do not have land-based casinos. Kentucky has historically embraced gambling related to horse racing.[98] Historical racing machines, which functionally operate like classic slot machines using past horse races, have been used in the Bluegrass state for nearly a decade.[99] Currently, there is a bill in progress to protect the operation of these machines after the Kentucky Supreme Court ruled that they did not fall under the Kentucky statute’s definition of pari-mutuel wagering.[100] Nevertheless, Churchill Downs offers online and mobile betting through their TwinSpires subsidiary.[101] The same enthusiasm, however, has not surrounded other forms of gambling in Kentucky.

Kentucky has notoriously been opposed to online poker for over a decade. In 2008, then-governor, Steve Beshear, attempted “to seize 141 domain names registered to online companies” in order to prevent Kentuckians from accessing the sites.[102] The Governor’s rationale included many familiar arguments, including the claim that minors had easy access to the sites and the sites took away taxes that would usually go to the state.[103]The state recently won litigation against PokerStars, though it is still seeking recovery of the $1.3 billion.[104] The case was originally brought in 2010 following the enactment of the UIGEA.[105]

Even in a state as hostile to online poker as Kentucky, there is surprisingly a chance that legalization will occur in the near future. Ironically, the current Governor, Andy Beshear, Steve Beshear’s son, is advocating for the online poker industry to come to Kentucky.[106] The revenue raised by the gambling industry will predominately be used to help fund a severely underfunded pension plan for state educators—a viable solution to an overwhelming issue in the Commonwealth.[107]

The Governor also has legislators on his side. On the first day of the 2020 session, Representative Adam Koenig introduced HB 137 which purported legalization of sports betting, DFS, and online poker.[108] Under HB 137, players who would like to bet online would have to register in person with a licensed organization—likely one of the state’s racetracks.[109] Although this bill was approved by the House, it was killed by partisan politics before it could reach the Kentucky Senate.[110] Unfortunately, in 2021, a similar bill, HB 241, failed in the Kentucky House, because of the more pressing issue of historic horse betting.[111] Koenig plans to reintroduce the bill in the 2022 session.[112] Kentucky should look to surrounding states as guides in determining tax rates that will be most beneficial to its businesses as well as its citizens. With each passing year, Kentucky loses tax revenue to Indiana, Ohio, and other surrounding states.[113]

The Commonwealth will, however, still have to contend with challenges by the federal government under the UIGEA. If the DOJ’s Criminal Division chooses to prosecute online poker operators again as in Black Friday, states would have to argue against the UIGEA and the Wire Act. This matter is complicated given the OLC’s 2018 memo.[114]  If Kentucky follows the solution offered above, however, there is greater hope that online gambling will be here to stay in the Bluegrass State for good. If the Governor and Legislature work together to bring gambling to Kentucky, it could serve as a viable solution to the pension crisis facing the state.

VI.   Conclusion

The path to legalization among states is encouraging in light of the multi-state online agreement. The foundation has been laid for states to legalize poker in their jurisdiction and then join the multi-state agreement. This would exponentially increase the player pools across the states, adding to the overall health and continuity of the industry. The fact that states like Kentucky are pursuing legalization of online gaming is promising for the future of the industry.

Now is the time for the federal government and individual states to embrace the legalization of many forms of gaming, including online poker. Public approval for online gambling is increasing, offering a prime opportunity for states to act. Rather than allowing offshore gaming websites to infiltrate the American market, states should reclaim the market share. Online gaming will give states access to additional tax revenue which can be put to use improving the lives of their citizens. States are merely delaying the inevitable legalization of online poker if they choose to wait. For now, states should play their hand right instead of folding.

I Senior Staff Editor, Kentucky Law Journal, Vol. 109; J.D. Candidate, The University of Kentucky J. David Rosenberg College of Law (2021); B.A., The University of Kentucky (2017).

2 Global Gambling Industry in Recent Years, Casino.org www.casino.org/features/gambling-statistics [https://perma.cc/BX2P-SCF2].

See Welcome to TwinSpires, TwinSpires, https://www.twinspires.com/about-us [https://perma.cc/53SD-ZCMS]; FanDuel, https://www.fanduel.com[https://perma.cc/NR2M-GHP8]; DraftKings, http://www.draftkings.com [https://perma.cc/L7NW-DNFF].

[4] Erik Smith, Planet Poker Era, Poker Hist. (Aug. 10, 2011, 5:15 PM), www.pokerhistory.eu/history/planet-poker-first-online-poker-room [https://perma.cc/MTB2-UWHU].

[5] See Bernard Lee, Life and Legacy of Chris Moneymaker, ESPN (May 24, 2018), www.espn.com/poker/story/_/id/23594337/world-series-poker-life-legacy-chris-moneymaker-15-years-2003-wsop-main-event-win-changed-world-poker [https://perma.cc/MCL9-UX8S].

[6] Chris Moneymaker, PokerListings, https://www.pokerlistings.com/poker-player/chris-moneymaker [https://perma.cc/SFS5-A89Z].

[7] Unlawful Internet Gambling Enforcement Act of 2006, ch. 53, sec. 802, §§ 5361–67, Pub. L. No. 109-347, 120 Stat. 1952 (codified as 31 U.S.C. §§ 5361–67).

[8] 31 U.S.C. § 5363 (2006).

[9] 31 U.S.C. § 5361 (2006).

[10] Andrew M. Nevill, Folded Industry? Black Friday’s Effect on the Future of Online Poker in the United States, 2013 U. Ill. J.L. Tech. & Pol’y 203, 204 (2013).

[11] Id.

[12] See id.

[13] Professional and Amateur Sports Protection Act, ch. 178, sec. 1–3, §§ 3701–3704, Pub. L. No. 102-559, 106 Stat. 4227 (1992); see generally John T. Holden, Prohibitive Failure: The Demise of the Ban on Sports Betting, 35 Ga. St. U.L. Rev. 329, 334­–37 (2019) (explaining the events leading up to and the passage of PASPA).

[14] Murphy v. NCAA, 138 S. Ct. 1461, 1484–85 (2018).

[15] See Justin Fielkow et al., Tackling PASPA: The Past, Present, and Future of Sports Gambling in America, 66 DePaul L. Rev. 23, 47–49 (2016).

[16] Id. at 48.

[17] Ryan Rodenberg, United States of Sports Betting: An Updated Map of Where Every State Stands, ESPN (Apr. 7, 2021) https://www.espn.com/chalk/story/_/id/19740480/the-united-states-sports-betting-where-all-50-states-stand-legalization [https://perma.cc/52YC-5W43].

[18] 28 U.S.C. § 3702 (1992).

[19] 31 U.S.C. § 5361(b) (2006).

[20] Id. at § 5363.

[21] Id. at § 5362.

[22] See infra Part III.

[23] 31 U.S.C. § 5362 (2006).

[24] Id.

[25] Id. at § 5363.

[26] Murphy v. NCAA, 138 S. Ct. 1461, 1485 (2018) (quoting New York v. United States, 505 U.S. 144, 166 (1992)).

[27] 31 U.S.C. § 5361(b) (2006).

[28] Joker Club, L.L.C. v. Hardin, 643 S.E.2d 626, 630–31 (N.C. Ct. App. 2007); Commonwealth v. Dent, 992 A.2d 190, 195–96 (Pa. Super. Ct. 2010). 

[29] 31 U.S.C. §§ 5361–67.

[30] See, e.g.Joker Club, 643 S.E.2d at 629–30.

[31] Id. 

[32] Id. at 630.

[33] Id.

[34] Id.

[35] Id. at 630–31.

[36] Commonwealth v. Dent, 992 A.2d 190, 196 (Pa. Super. Ct. 2010).

[37] See generally, Poker Starting Hands Percentage & How to Play Your Position, CardsChat, http://www.cardschat.com/poker-starting-hands-percentage.php [https://perma.cc/KLU6-NAVQ] (explaining different poker strategies).

[38] E.g.Dent, 992 A.2d at 195–96.

[39] See Roman V. Yampolskiy, Game Skill Measure for Mixed Games, 1 Int’l J. Computer & Info. Engineering, 662, 663 (2007), https://publications.waset.org/4769/pdf [https://perma.cc/ZB5Q-FRT5].

[40] 31 U.S.C. § 5362.

[41] See Michael A. Tselnik, Note, Check, Raise, Or Fold: Poker and the Unlawful Internet Gambling Enforcement Act, 35 Hofstra L. Rev. 1617, 1669 (2007).

[42] Id.

[43] Murphy v. NCAA, 138 S. Ct. 1461 (2018).

[44] Id. at 1471.

[45] See id. at 1465–66.

[46] Id. at 1471. Holden’s article provides a much deeper analysis of the litigation history surrounding PASPA. Holden, supra note 13, at 353–64.

[47] Murphy, 138 S. Ct. at 1478.

[48] Id. at 1484.

[49] Id. at 1469.

[50] See Holden, supra note 13, at 336.

[51] See generally Jack S. Blocker, Jr., Did Prohibition Really Work?, 96 Am. J. Pub. Health 233 (2006) (arguing that Prohibition did not eliminate alcohol consumption in America, but it significantly reduced it). 

[52] Holden, supra note 13, at 337, 339–42, 346.

[53] DraftKings to Open Fantasy Lounges at AT&T Stadium, Gillette Stadium & Arrowhead Stadium to Kick Off the Football Season, PRNewswire (Aug. 26, 2015, 11:52 PM), http://www.prnewswire.com/news-releases/draftkings-to-open-fantasy-lounges-at-att-stadium-gillette-stadium--arrowhead-stadium-to-kick-off-the-football-season-300133579.html [https://perma.cc/4LS7-AKEX].

[54] See NBA Announces Sports Betting Partnership with William Hill, NBA (Oct. 2, 2019, 12:40 PM), http://www.nba.com/article/2019/10/02/nba-partnership-william-hill-official-release [https://perma.cc/J5PV-8FQT]; see also Scott Eden, How Former Ref Tim Donaghy Conspired to Fix NBA Games, ESPN (Jul. 9, 2020), http://www.espn.com/nba/story/_/id/25980368/how-former-ref-tim-donaghy-conspired-fix-nba-games [https://perma.cc/R4C3-VGYC] (showing game-fixing in the NBA).

[55] See Gregory A. Brower & Mark R. Starr, The Wire Act Revisited: How the DOJ’s Recent Reinterpretation May Affect Gaming in Nevada, Nev. Law., Apr. 2019, at 8, 10.

[56] Id. at 9 (citing 18 U.S.C. § 1084(a)).

[57] Id.

[58] See id.

[59] Id.

[60] Id.

[61] Id. (citation omitted). 

[62] Id.

[63] Id.

[64] Id.

[65] See id. at 10.

[66] Id.

[67] Pete Kaminski, Legal Nevada Online Poker, Legal US Poker Sites (Feb. 23, 2021), www.legaluspokersites.com/state-laws/nevada [https://perma.cc/EHM7-WXSF].

[68] Id.

[69] Cliff Spiller, Nevada and Delaware Sign an Agreement to Share iPoker Player Pools, Legal US Poker Sites (Nov. 2, 2018), www.legaluspokersites.com/news/nevada-and-delaware-sign-an-agreement-to-share-ipoker-player-pools/3212 [https://perma.cc/UVA8-8K4F].

[70] Id.

[71] Kaminski, supra note 67.

[72] Steve Schult, Pennsylvania Online Poker Generates $2.5 Million Worth of Revenue in First Month, Card Player (Jan. 21, 2020), www.cardplayer.com/poker-news/24602-pennsylvania-online-poker-generates-2-5-million-in-revenue-in-first-full-month [https://perma.cc/YR7V-P789].

[73] Id.

[74] PokerStars Launches in Pennsylvania, Poker Stars (Nov. 4, 2019), https://www.pokerstars.com/en/news/pokerstars-launches-in-pennsylvania/57916/?no_redirect=1 [https://perma.cc/U7ZQ-PQJF].

[75] Multi-State Legal Online Poker, Online Poker Rep. (Mar. 22, 2021), www.onlinepokerreport.com/multi-state-poker [https://perma.cc/DB2Z-9XRT].

[76] Schult, supra note 72.

[77] Id. The outset of the COVID-19 pandemic has kept most gamblers at home. As anticipated, the online gaming industry has only continued to thrive due to widespread restrictions on in-person betting. If more states had online options available, gamblers may not have to risk their health by going to a casino during a pandemic in order to make their bets. See FN Media Group, How Sports Betting is Thriving Despite COVID-19 Lockdowns, PRNewswire (July 17, 2020, 8:00 PM), www.prnewswire.com/news-releases/how-sports-betting-is-thriving-despite-covid-19-lockdowns-301095319.html [https://perma.cc/2ACF-9SUN].

[78] Multi-State Legal Online Pokersupra note 75. 

[79] See Blocker, supra note 51, at 237 (discussing the sale of dehydrated grapes and how consumers would rehydrate and ferment them to make wine). 

[80] See id.

[81] Nevill, supra note 10, at 217.

[82] Adrian Sterne, Offshore Poker Sites, Top 10 Poker Sites, https://www.top10pokersites.net/offshore-poker-sites [https://perma.cc/3L28-MBUC].

[83] See Jake Patel, Offshore Gambling, Compare.Bet, www.compare.bet/en-us/offshore-gambling [https://perma.cc/BL4K-MBTW].

[84] See generally Avery Minor, Note, Cryptocurrency Regulations Wanted: Iterative, Flexible, and Pro-Competitive Preferred, 61 B.C.L. Rev. 1149, 1150 (discussing cryptocurrency in the United States).

[85] Natalie Faulk, Ultimate Bet and Absolute Poker: What Happened?, Upswing Poker (Mar. 27, 2018), www.upswingpoker.com/ultimate-bet-absolute-poker-scandal [https://perma.cc/4EAH-J7R6].

[86] Id.

[87] Id.

[88] Id.

[89] Id.

[90] Id.

[91] Absolute Poker, Safest Poker Sites, www.safestpokersites.com/absolute-poker [https://perma.cc/QAS9-T8VD].

[92] 31 U.S.C. § 5361.

[93] Murphy v. NCAA, 138 S. Ct. 1461, 1485 (2018).

[94] Id. at 1484–85.

[95] States with Legal Horse Betting, Legal Sports Betting (Mar. 29, 2021), https://www.legalsportsbetting.com/states-with-horse-betting/ [https://perma.cc/7ASA-8HK5].

[96] Fielkow et al., supra note 15, at 48–49.

[97] 31 U.S.C. § 5361.

[98] States with Legal Horse Bettingsupra note 95; see generally Ky Rev. Stat. Ann. § 230.260 (West 2011) (providing authority to the Kentucky Horse Racing Commission)

[99] Steve Bittenbender, Kentucky Legislation Begins Action to Legalize Historical Horse Racing Machines, Ctr. Square (Feb. 4, 2021), https://www.thecentersquare.com/kentucky/kentucky-legislature-begins-action-to-legalize-historical-horse-racing-machines/article_3ec45258-6721-11eb-b253-a7a291baf292.html [https://perma.cc/JR8A-VKAP].

[100] Id.; Family Tr. Found., Inc. v. Ky. Horse Racing Comm'n, No. 2018-SC-0630-TG, 2020 WL 5806813, at *5 (Ky. Sept. 24, 2020), reh'g denied (Jan. 21, 2021).

[101] Bet Online with TwinSpires, TwinSpires, www.Twinspires.com [https://perma.cc/G64M-DE24].

[102] Bob Pajich, Kentucky Attempts to Seize Online Poker Domains, Card Player (Sep. 22, 2008), www.cardplayer.com/poker-news/5121-kentucky-attempts-to-seize-online-poker-domains [https://perma.cc/QZC6-HPVT].

[103] Id.

[104] John Cheves, Online Poker Site Owes KY $1.3 Billion. The State is Reaching for First $100 Million., Lexington Herald Leader (Mar. 25, 2021, 3:29 PM), https://www.kentucky.com/news/politics-government/article250204085.html#:~:text=The%20high%20court%20said%20Kentucky's,poker%20is%20illegal%20in%20Kentucky.

[105] Steve Schult, Kentucky Wins $1.3 Billion Lawsuit Against PokerStars, Card Player (Dec. 17, 2020), https://www.cardplayer.com/poker-news/25559-kentucky-wins-1-3-billion-lawsuit-against-pokerstars [https://perma.cc/MY2G-Y96Y].

[106] Jennifer Newell, Online Poker Remains in Kentucky Gubernatorial Debates, Legal Us Poker Sites (Oct. 17, 2019), www.legaluspokersites.com/news/online-poker-kentucky/19482 [https://perma.cc/W8MB-JLN8].

[107] Id.

[108] Alex Weldon, Kentucky Online Poker Bill Clears First Committee Hurdle with Ease, Online Poker Rep. (Jan. 22, 2020, 5:00 PM), www.onlinepokerreport.com/39654/kentucky-online-poker-bill-advances [https://perma.cc/E9VY-P4M2].

[109] Id.

[110] Tim Sullivan, Despite Majority Support in Kentucky House, Odds Were Against Sports Betting Bill, Louisville Courier J. (Apr. 8, 2020, 5:50 PM),  https://www.courier-journal.com/story/sports/2020/04/08/kentucky-house-politics-kills-kentucky-sports-betting-bill/2970078001/ [https://perma.cc/2KYY-JXGT].

[111] Christina Monroe, Kentucky Kills Bill for Legal Sports Betting in 2021, Legal Sports Betting (Mar. 14, 2021, 12:03 PM), https://www.legalsportsbetting.com/news/kentucky-kills-bill-for-legal-sports-betting-in-2021/ [https://perma.cc/5TY5-K76J].

[112] Id.

[113] James McNair, How Kentucky Money Fuels Cross-Border Casinos, Other State Budgets, Ky. Ctr. Investigative Reporting (Mar. 6, 2015), https://kycir.org/2015/03/06/how-kentucky-money-fuels-cross-border-casinos-other-state-budgets/ [https://perma.cc/K3BF-5KF6]. While the article’s numerical data is outdated in this rapidly growing industry, it is a detailed empirical analysis of the problem, and the same issues yet remain for Kentuckians today.

[114] Brower & Starr, supra note 55, at 9.

Setting a Dangerous Precedent: A Constitutional Analysis of Kentucky Courts' Public Policy Exception to Conflicts-of-Law Jurisprudence

Download a PDF Below:

Cameron F. Myers[1]

Introduction

In resolving contractual disputes in which the contract or the contracting parties are connected to multiple states, courts are often charged with the daunting task of determining which state’s law provides the proper avenue for handling the dispute. In Kentucky, courts generally follow the Restatements (Second) of Conflicts of Laws “most significant relationship” test.[2]

The most significant relationship test instructs courts to consider several factors: the place of formation of the contract; the place where the contract was or is to be performed; the physical location, if any, of the contract’s subject matter; as well as the domicile, residence, and/or place of business of the contracting parties.[3] The idea is for these factors, taken together, to provide a defendable means for Kentucky courts to determine which state has the “most significant relationship to the transaction and the parties,” and, consequently, which state’s law should govern the contractual dispute.[4]

But even if the application of the most significant relationship test clearly identifies a state other than Kentucky as the state with the most significant relationship to the transaction and the parties, Kentucky courts will nevertheless refuse to apply the law of that state if doing so would violate a well-established public policy of the Commonwealth.[5] Notably, however, Kentucky courts will invoke this public policy exception to the most significant relationship test only for the protection of a Kentucky resident. As Justice Abramson once wrote for the Supreme Court of Kentucky, the public policy exception requires a “well-founded rule of domestic policy established to protect the morals, safety, or welfare of our people.”[6]The court emphasized that “[w]here no Kentucky resident has been affected, rarely will that standard be met.”[7]

This Note explores the constitutionality of Kentucky courts’ refusal to extend the public policy exception to nonresidents who properly bring suit in Kentucky. Part I employs case law examples to illustrate how Kentucky courts routinely apply the public policy exception for the protection of Kentucky residents, and it traces the historical trend of Kentucky courts toward denying the public policy exception to nonresidents. Part II analyzes the constitutionality of Kentucky courts’ application of the public policy exception under the Equal Protection Clause. Part III examines the constitutionality of Kentucky courts’ application of the public policy exception under the Privileges and Immunities Clause. Part IV provides a brief synopsis of the reasons why Kentucky should apply the public policy exception equally to all persons within its boundaries, regardless of residency.  

 I.           The Case Law

Recently, the public policy exception was used for the protection of a Kentucky resident in the case Woods v. Standard Fire Insurance Company.[8] In Woods, a Kentucky resident was gravely wounded in a car crash on a Kentucky roadway.[9] Woods, the Kentucky resident, acquired medical charges surpassing $250,000.[10] During the collision, Woods was operating her father’s car, a resident of Connecticut.[11] The car was insured by Standard Fire, a Connecticut insurance company with its principal place of business in Connecticut.[12] Under the terms of the policy, Woods’ father was the named insured and Woods was in no way covered.[13]

The other motorist in the collision was insured by United States Automobile Association (USAA).[14] Woods settled her tort claim with USAA for $50,000.[15] Woods obtained $11,000 in “UIM benefits” from Standard Fire, the insurer of her father’s vehicle, and requested an additional $100,000 in UIM benefits from the company.[16] The Standard Fire policy contained a set-off provision which lowered its “limit of liability . . . by all sums” paid by other parties possibly “legally responsible” for collisions causing physical damage.[17]

Under Connecticut law, where such provisions are enforceable, this clause would reduce (“set-off”) Woods’ $100,000 UIM payment from Standard Fire by $61,000, the total amount previously received from USAA and Standard Fire.[18] Under Kentucky law, however, such set-off provisions are not enforceable as against public policy and would therefore not reduce Woods’ total amount recoverable by the prior amounts received.[19] Consequently, the case turned on whether Connecticut law or Kentucky law governed the interpretation of the policy.[20]

Despite its conclusion that the application of the most significant relationship test weighed in favor of applying Connecticut law, the court nevertheless held that the public policy exception required application of Kentucky law to the insurance policy.[21] The court “acknowledge[d] that application of the public policy exception in this case swallows the most significant relationship test analysis, which points in favor of application of Connecticut law.”[22] But the court reasoned that Kentucky state courts have “demonstrated a willingness to disregard the most significant relationship test” when its application would clearly violate the public policy of Kentucky.[23]

Although the court made no comment of the fact that it was disregarding another state’s substantive law for the protection of a Kentucky resident, as opposed to a non-resident, this decision is consistent with the pattern of Kentucky courts only applying the public policy exception if a Kentucky resident stands to benefit.

A similar example reflecting this pattern is found in the case of Schardein v. State Auto Insurance Company.[24] Schardein involved an automobile accident on a Kentucky roadway between a Kentucky resident and another driver.[25] The Kentucky resident, a 19-year-old, was killed in the collision.[26] The decedent’s estate moved against the uninsured motorist policy of his father, an Indiana resident insured by State Auto.[27]Similar to the insurance policy in Woods, the policy issued by State Farm to the decedent’s father contained a set-off provision which reduced the payments receivable from State Farm by all other amounts paid by other parties as a result of the collision.[28]

The decedent’s estate conceded that under Kentucky’s traditional conflict of laws analysis Indiana law would apply, but nevertheless argued that Kentucky law should apply under the public policy exception.[29] The court agreed.[30] Despite the fact that the named policy holders were both Indiana residents, the court held that the decedent was a resident of Kentucky and therefore his estate was “entitled to the protection of Kentucky’s laws.”[31]

A.      The Unfollowed Exception

State Farm v. Marley appears to be the only case in which the Kentucky Supreme Court applied the public policy exception for the protection of a nonresident of Kentucky,[32] but that opinion has not been followed and was later implicitly rejected by the Kentucky Supreme Court itself.[33]

In Marley, an Indiana resident fell asleep behind the wheel and lost control of his vehicle while driving through Kentucky with his family.[34] The driver of the vehicle had a personal liability umbrella insurance policy issued in Indiana.[35] The driver’s injured family members, all of which were Indiana residents, subsequently filed a personal injury claim against the driver in Kentucky.[36] The driver’s insurer contended that a household exclusion provision within the policy was valid and enforceable and therefore prevented the family members from recovering against the driver’s policy.[37]

In finding that such provisions clearly violated the public policy of Kentucky, the court held the household exclusion provision void and unenforceable as applied to the automobile liability coverage.[38] The court reasoned that it is clear public policy of Kentucky “to ensure that victims of motor vehicle accidents on Kentucky highways are fully compensated.”[39] The majority opinion made no distinction between residents and non-residents in holding the household exclusion provision unenforceable as against public policy.[40]

Despite the majority’s constitutionally-compliant opinion, the dissenting opinion has since become the prevailing view of the Commonwealth.[41]The dissent takes the position that it is illogical for Kentucky courts to apply Kentucky’s public policy exception in a way that would “provide rights to nonresidents to which they are not entitled under the law of their home state.”[42] Because all of the parties to this action were residents of Indiana, the dissent contends, Indiana law should govern the interpretation of the policy and that should be the end of the matter.[43] The crux of the dissent’s argument is that nonresidents of Kentucky should not be afforded the protections of the public policy of Kentucky merely because they got into an accident in Kentucky.[44]

In support of this view, the dissent makes two main arguments. First, the dissent argues generally that extending the public policy exception to out-of-state residents encourages forum shopping, which, itself, violates the public policy of Kentucky.[45] Second, and more related to the facts of the case at hand, the dissent contends that a majority of other jurisdictions have held such household exclusion clauses enforceable “if valid where the policy was issued and where the parties reside even if invalid in the state where the accident occurred.”[46]

On their face, the dissent’s arguments in support of denying the public policy exception to out-of-state residents are both logical and well-reasoned. It is true that a majority of other jurisdictions have held these clauses enforceable if valid where the policy was issued, even if the clauses were invalid in the state where the accident occurred.[47] It is likewise true that forum shopping is against the public policy of Kentucky.[48] Logical as these arguments may be, however, they suffer two critical flaws. 

First, the dissent’s “everyone else is doing it” argument overlooks, as many other jurisdictions have, the fact that routinely applying this exception for the protection of in-state residents while consistently denying its applicability to similarly-situated nonresidents implicates the Equal Protection Clause. The Equal Protection Clause unequivocally commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”[49] The public policy exception clearly constitutes law, and it certainly provides protection for those whom it is invoked for.[50]  Accordingly, it is difficult to see how the Equal Protection Clause could be read to require anything other than that Kentucky courts apply the protections of the public policy exception equally to residents and nonresidents in Kentucky. 

Second, the dissent’s forum-shopping argument overlooks the Supremacy Clause. As explained above, it is hard to see how the Equal Protection Clause could be read to not require Kentucky courts to apply the protections of the public policy exception equally to residents and nonresidents alike. The dissent’s argument that applying the public policy exception to non-residents would violate state law of preventing forum-shopping therefore creates a direct conflict of laws between the U.S. Constitution and state law. In situations such as this, the Supremacy Clause commands that the U.S. Constitution prevail over state law.[51]

B.      Denial of Public Policy Exception to Nonresidents

In the 2013 decision of Hodgkiss-Warrick,[52] the Kentucky Supreme Court implicitly changed its view on the applicability of the public policy exception to out-of-state residents. In that case, a Pennsylvania resident sued to recover for injuries sustained in an automobile collision while riding with her daughter on a Kentucky roadway.[53] The suit named the injured Pennsylvania resident’s insurance company as defendant, alleging insufficient motorist coverage under a policy issued in Pennsylvania and covering a vehicle registered and used exclusively in Pennsylvania.[54] The policy at issue contained an exclusion prohibiting the injured Pennsylvania resident from recovering damages arising out of an accident involving an automobile used by a resident relative, including the Pennsylvania resident’s daughter.[55]

While conceding that under traditional conflict-of-law analysis Pennsylvania law would govern the interpretation of the insurance policy, the Pennsylvania resident argued that the exclusion of her daughter’s vehicle from the policy’s coverage would so violate the public policy of Kentucky that Kentucky law, rather than Pennsylvania law, must apply.[56] Under Kentucky law, the Appellee argued that such exclusions from insurance policies are unenforceable as against Kentucky public policy.[57]

Although the court found that the exclusion at issue did not, in fact, run afoul of Kentucky public policy, the court acknowledged that, even if it did, the public policy exception would nevertheless be inapplicable to the facts of this case.[58] The court reasoned that in order for the public policy exception to bar enforcement of a contractual provision that is valid where made, the Kentucky public policy against such enforcement must be significant.[59] According to the court, a public policy is only substantial if it is a “well-founded rule of domestic policy established to protect the morals, safety or welfare of our people.”[60] “Where no Kentucky resident has been affected,” the court continued, “rarely will that standard be met.”[61]

Following the logic of Hodgkiss-Warrick, the U.S. District Court for the Eastern District of Kentucky, applying Kentucky law, similarly declined to invoke the public policy exception for the benefit of a Kentucky nonresident in the 2014 case of Georgel v. Preece.[62] Georgel involved an accident between a West Virginia resident and a Kentucky resident on a Kentucky roadway.[63] Georgel, the West Virginia resident, filed suit against Preece, the Kentucky resident, as well as Preece’s insurance company seeking damages for injuries he sustained as a result of the accident.[64]Georgel’s insurance company countered that Georgel’s own comparative fault precluded Georgel from recovery.[65] Because West Virginia law encompasses the doctrine of modified comparative negligence, which bars a plaintiff who is fifty percent or more responsible from recovery, Georgel’s chances of recovery were far less viable in West Virginia than in Kentucky.[66]

In its application of the “most significant relationship” test, the court ultimately concluded that West Virginia had the most significant relationship to the transaction and the parties and, therefore, West Virginia law should apply.[67] Georgel urged the court to apply the public policy exception, arguing that Kentucky has a strong, clearly-established public policy of recognizing pure comparative fault.[68] Georgel explained that the purpose behind Kentucky’s doctrine of pure comparative fault is “to promote the policy of allowing injured persons to recover despite being partially responsible for their own injuries.”[69] If the court were to apply West Virginia law, Georgel argued, he would be denied the policy’s benefit.[70]

But Georgel’s pleas fell on deaf ears due to the simple fact that Georgel was not a resident of Kentucky.[71] In declining to extend the public policy exception, the court distinguished a prior case recognizing this public policy on the sole basis that in that case the party who stood to benefit from Kentucky law was a Kentucky resident, whereas Georgel was not.[72] In addition to the court’s reliance on Hodgkiss-Warrick, the court also cited the dissenting opinion in Marley for the proposition that Kentucky has no interest in applying its public policy to provide benefits to out-of-state residents who would not be entitled to such benefits in their own state of residence.[73]

  II.           Constitutionality Under Equal Protection Clause

As addressed above, Kentucky courts’ denial of the public policy exception to nonresidents implicates the Equal Protection Clause. To be sure, the Clause is implicated whenever a government action draws a distinction between groups of people and provides one group more or less protection under the law than the other group.[74] Here, in the context of conflict-of-law disputes, Kentucky courts have drawn a distinction between Kentucky residents and nonresidents and afforded Kentucky residents greater protection under the law by only invoking the public policy exception on their behalf. The Equal Protection Clause is implicated by this residency-based discrimination, and the question next becomes the appropriate level of scrutiny for constitutional review.[75]

Typically, laws or government actions which draw such classifications between groups of people will survive judicial review under the Equal Protection Clause so long as the classification is “rationally related to a legitimate government interest.”[76] This standard is known as rational basis review, and it is used to analyze government regulations, laws, or actions involving classifications that do not implicate an immutable characteristic (e.g., race, national origin, aliens, gender) or encroach on a fundamental right (i.e., rights specifically recognized by the Supreme Court as granted by the Constitution).[77] This is a relatively lenient standard in which the government is normally—though not always—given a significant amount of deference.[78]

In the context of Kentucky’s denial of its public policy exception to nonresidents, rational basis review is likely the proper standard of constitutional scrutiny. The classification made by Kentucky courts in this regard is based on state of residency, which is not an immutable characteristic warranting a higher level of scrutiny.[79] Likewise, it is unlikely that the denial of the public policy exception to nonresidents interferes impermissibly with the exercise of a fundamental right—at least under traditional Equal Protection Clause analysis.[80] Even under rational basis review, however, courts will strike down laws or governmental actions if there is simply no plausible legitimate state interest for the state to advance.[81]

In Romer v. Evans, for example, the Court struck down under rational basis review a Colorado Constitutional Amendment which precluded any judicial, legislative, or executive action designed to protect persons from discrimination based on their sexual orientation.[82] The State’s proffered interest in adopting the Amendment was the protection of “the liberties of landlords or employers who have personal or religious objections to homosexuality.”[83] In declining to deem this interest legitimate, the Court reasoned that if equal protection of the laws means anything, “it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate government interest.”[84]

Similarly, in Metropolitan Life Insurance Company v. Ward, the Court used rational basis review to strike down an Alabama law which attempted to promote the growth of an in-state insurance industry by taxing in-state companies at much lower rates than out-of-state companies doing business in the State.[85] The Court found the State’s preferred interest to be “purely and completely discriminatory,” and accordingly deemed the law the “very sort of parochial discrimination that the Equal Protection Clause was intended to prevent.”[86]  

Based on the language of the Kentucky opinions denying the public policy exception to out-of-state residents, there appear to be two state interests Kentucky could advance in support of making this distinction. First, Kentucky could argue that it has a legitimate state interest in declining to “provide rights to nonresidents to which they are not entitled in their home state.”[87] It is difficult to distinguish such an interest from the impermissible state interest offered by the Colorado government in Romer, as it seems to be more of a bare desire to disfavor a particular group of people within the Kentucky’s borders than an effort to advance a bona-fide interest for the benefit of the Commonwealth. 

Though Kentucky’s inequal application of its public policy exception harms a group of people less directly than the Colorado constitutional amendment did in Romer (which is perhaps part of the reason why such practices have escaped Constitutional scrutiny thus far), the practical effect is the same. In both instances, the government action singles out a particular group with little political power (homosexual Colorado citizens in Romer)or no political power (nonresidents who properly bring suit in Kentucky) within a state and disadvantages that group.[88] Accordingly, it seems plausible that even under rational basis review this interest would fail to qualify as legitimate.  

Alternatively, Kentucky could argue that it has a legitimate state interest in refusing to disrupt the balance of public policies that other states have chosen for their citizens.[89] Here too, though, it is uncertain whether such an interest would qualify as legitimate, as there appears to be no case law even remotely on point. Logically speaking, however, one major flaw in this argument is that Kentucky has no issue overriding the balance of public policies and substantive laws that another state has chosen for its residents when doing so protects a Kentucky resident.[90]

Furthermore, such a disparate treatment of non-residents who properly bring suit in Kentucky could be analogized, albeit imperfectly, to Alabama’s “purely and completely discriminatory” treatment of out-of-state companies doing business in Alabama as in Ward.[91] Just as the Supreme Court there deemed the State’s interest in discriminating against out-of-state companies in order to protect domestic growth to be illegitimate,[92] the Supreme Court could likewise hold Kentucky’s interest in declining to disrupt the balance of policies chosen by other states for their residents, except when doing so would benefit a Kentucky resident, to be insufficient. Accordingly, it seems quite plausible Kentucky’s practice of denying its public policy exception to nonresidents could fail even the most deferential standard of constitutional scrutiny. 

III. Constitutionality Under Privileges and Immunities Clause

Article IV, Section 2 of the United States Constitution requires that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”[93] Historically, the Privileges and Immunities Clause has been used primarily to protect rights which are either fundamental or involve important economic activities.[94]

The most obvious privileges and immunities, for example, are constitutional rights,[95] such as the right to own and dispose of property,[96] or the right to pursue “a common calling.”[97] By the same token, the right to engage in a particular trade or profession, or to pay an equal licensing fee as residents for certain commercial activities, also qualify as privileges and immunities under the clause.[98] Rights which are not considered fundamental, such as the right to hunt for sport, for example, do not qualify as privileges and immunities.[99]

In the context of conflicts-of-law, the Privileges and Immunities Clause has a particularly curious history. While Supreme Court justices have acknowledged the inherent overlap between constitutional law and conflicts-of-law principles,[100] the modern Court has never heard a Privileges and Immunities Clause challenge to a state conflicts-of-law rule.[101] In fact, the Court has not invalidated a state conflict-of-law decision under anyconstitutional provision since 1951.[102] This is true despite the fact that conflict-of-law rules that give preference to local litigants constitute a “prima facie” violation of the Privileges and Immunities Clause under even the most liberal reading of the Clause’s text.[103]

But for some reason, the Supreme Court has steered clear of this convoluted intersection of law for more than a half-century, leaving its resolution entirely to state courts and legal theorists.[104] The result of leaving this power with the states has, predictably, resulted in a system by which local discrimination against nonresidents often escapes judicial review.[105]

In the context of Kentucky only applying its public policy exception for the protection of Kentucky residents, for example, certain residents of other states who lawfully bring suit in Kentucky are denied Kentucky’s favorable policies. Truthfully, it is less than clear exactly what constitutes a “privilege” or “immunity” under the Clause as to warrant constitutional protection against discrimination on the basis of state residency.[106] But because Kentucky advances these policies for the protection of Kentucky residents, its denial to residents of other states at least arguably deprives those citizens of a fundamental right or “privilege” under the clause—the constitutional right to equal protection of the laws. 

As one prominent legal theorist put it, “if the state’s conflicts rules provides that a local right will prevail in a particular case when asserted by a local, that right must prevail when asserted in the same case by an out-of-state[] [resident], unless there is some nondiscriminatory reason why it should not.”[107] The theorist continued, “[j]udicious use of garden-variety antidiscrimination principles embedded in the . . . Privileges and Immunities Clause,” would prevent such local favoritism by states.[108]

Yet, because the Supreme Court refuses to address this issue, states are permitted to continue discriminating against nonresidents through conflict-of-law rules in ways that run afoul of the Privileges and Immunities Clause.[109] For this reason, it is crucial for states like Kentucky who employ these rules to recognize the constitutional ramifications of their actions and lead the way in shifting towards a less-discriminatory body of law. If Kentucky were to reconcile its conflicts-of-law rules with the U.S. Constitution, the Commonwealth would be taking a significant step towards achieving the Framers’ core purpose in drafting the Privileges and Immunities Clause.[110]

IV. Kentucky Courts Should Apply the Public Policy Exception Without Regard to Residency

Given the constitutional issues surrounding conflicts-of-law practices in Kentucky, Kentucky courts should apply its public policy exception equally to residents and nonresidents alike. For one, it is questionable whether Kentucky’s current practice of denying its public policy exception to out-of-state residents could survive even the lowest level of constitutional scrutiny under the Equal Protection Clause.[111] Secondly, such discriminatory behavior is precisely what the Privileges and Immunities Clause was drafted to protect against.[112]

While it is true that the practice is unlikely to be reviewed by the Supreme Court in the near future,[113] Kentucky should nevertheless lead the way in exercising constitutionally compliant conflicts-of-law rules. To be sure, equal protection in the courts between residents and nonresidents alike was a vital part of the Framers’ understanding of the Privileges and Immunities Clause.[114] Further, the plain text of the Equal Protection Clause requires that no person (whether or not that person is a citizen, noncitizenresident or nonresident) within a state’s jurisdiction be denied equal protection of the laws of that state.[115]

In order for nonresidents who properly bring suit in Kentucky to receive equal protection in this context, they must be governed by “equal application of equal laws.”[116]  By embedding within its conflicts-of-law rules an exception, which can only be used for the protection of Kentucky residents, Kentucky courts violate this principle in the most literal sense.

Conclusion

In sum, by denying out-of-state residents, who properly bring suit in Kentucky, certain legal protections afforded to in-state residents, Kentucky’s application of the public policy exception to the Restatement (Second) Conflicts of Law test is at odds with both the Equal Protection Clause and the Privileges and Immunities Clause of the United States Constitution.  If Kentucky courts wish to continue overriding the Commonwealth’s conflicts-of-law principles with public policy, they should do so without regard to the claimant’s residency. By continuing to apply the public policy exception in a way that favors only local litigants, Kentucky courts set the dangerous precedent of ignoring some of the United States’ most fundamental laws.


I J.D. Candidate, University of Kentucky J. David Rosenberg College of Law (2021). 

[2] See, e.g., State Farm Mut. Auto. Ins. Cov. Hodgkiss-Warrick, 413 S.W.3d 875, 878 (Ky. 2013) (quoting Restatement (Second) of Conflict of Laws §188(1) (Am. Law Inst. 1977)).

[3] Id. at 878–79.

[4] Id. at 878 (quoting Restatement (Second) of Conflict of Laws §188(1) (Am. L. Inst. 1977)).

[5] State Farm Mut. Auto. Ins. Co. v. Marley, 151 S.W.3d 33, 35 (Ky. 2004). 

[6] Hodgkiss-Warrick, 413 S.W.3d at 882 (quoting R.S. Barbee & Co. v. Bevins, Hopkins & Co. 195 S.W. 154, 155 (Ky. 1917)).

[7] Id.see also Marley, 151 S.W.3d at 42 (Cooper, J., dissenting) (“Kentucky has no interest in applying our public policy to provide benefits to Indiana residents who would not be entitled to them under Indiana law.”).

[8] Woods v. Standard Fire Ins. Co., 411 F. Supp. 3d 397, 406 (E.D. Ky. 2019). 

[9] Id. at 399.

[10] Id.

[11] Id. at 400.

[12] Id.

[13] Id.

[14] Id. at 399.

[15] Id. at 400.

[16] Id.

[17] Id.

[18] Id. at 400–01.

[19] Id. at 401.

[20] Id.

[21] Id. at 405–06.  

[22] Id. at 405.

[23] Id.

[24] Schardein v. State Auto. Ins. Co., No. 12-288-C, 2012 U.S. Dist. LEXIS 180746, at *4–5 (W.D. Ky. Dec. 20, 2012).

[25] Id. at *1.

[26] Id.

[27] Id. at *2.

[28] Id. at *2–3.

[29] Id. at *3–4.

[30] Id. at *6.

[31] Id. at *4.

[32] See State Farm Mut. Auto. Ins. Cov. Marley, 151 S.W.3d 33, 34, 36 (Ky. 2004).

[33] State Farm Mut. Auto. Ins. Cov. Hodgkiss-Warrick, 413 S.W.3d 875, 882, 885 (Ky. 2013) (concluding that the Marley rationale was only applicable in limited circumstances: “Where no Kentucky resident has been affected, rarely will [the public policy exception] be met.”); see also Georgel v. Preece, No. 13-57-DLB-EBA, 2014 U.S. Dist. LEXIS 154678, at *22 (E.D. Ky. Oct. 30, 2014) (“[T]he Court sees no plausible basis for applying a public policy exception to the standard choice of law framework.”). 

[34] Marley, 151 S.W.3d at 34. 

[35] Id.

[36] Id.

[37] Id. at 35

[38] Id. at 36. 

[39] Id.

[40] See id. (“This claim arises from the ownership, operation, and use of a motor vehicle within Kentucky . . . .”).

[41] See State Farm Mut. Auto. Ins. Cov. Hodgkiss-Warrick, 413 S.W.3d 875, 885, 887 (Ky. 2013); Georgel v. Preece, No. 13-57-DLB-EBA, 2014 U.S. Dist. LEXIS 154678, *at 22 (E.D. Ky. Oct. 30, 2014) (“[T]he Court sees no plausible basis for applying a public policy exception to the standard choice of law framework.”).

[42] Marley, 151 S.W.3d at 41 (Cooper, J., dissenting).

[43] Id.

[44] See id. at 40 (Cooper, J., dissenting).

[45] Id. at 41 (Cooper, J., dissenting).

[46] Id. at 42 (Cooper, J., dissenting)..

[47] See, e.g., Am. Fam. Mut. Ins. Co. v. Williams, 839 F. Supp. 579, 583 (S.D. Ind. 1993) (upholding exclusion clause under Indiana law even though accident occurred in Kansas where exclusion was invalid); Allstate Ins. Co. v. Hart, 611 A.2d 100, 103–04 (Md. 1992) (upholding exclusion clause under Florida law even though accident occurred in Maryland where exclusion violated public policy); Sotirakis v. United Serv. Auto. Ass’n., 787 P.2d 788, 790–91 (Nev. 1990) (upholding exclusion clause under California law even though accident occurred in Nevada where exclusion was invalid); Draper v. Draper, 772 P.2d 180, 183 (Idaho 1989) (upholding exclusion clause under Oregon law even though accident occurred in New Mexico where exclusion was invalid). 

[48] See, e.g., Stewart v. Kentuckiana Med. Ctr., 604 S.W.3d 264, 270 (Ky. Ct. App. 2019).

[49] U.S. Const.  amend. XIV.

[50] See State Farm Mut. Auto. Ins. Cov. Hodgkiss-Warrick, 413 S.W.3d 875, 881 (Ky. 2013) (“[P]ublic policy, invoked to bar the enforcement of a contract, is not simply something courts establish from general considerations of supposed public interest, but rather something that must be found clearly expressed in the applicable law.”) (emphasis added). 

[51] U.S. Const.  art. VI, cl. 2.

[52] Hodgkiss-Warrick, 413 S.W.3d 875. 

[53] Id. at 876.

[54] Id.

[55] Id. at 878.

[56] Id. at 878, 879.

[57] Id. at 878.

[58] See id. at 882–83. 

[59] Id. at 882.

[60] Id. (quoting R.S. Barbee & Co. v. Bevins, Hopkins & Co. 195 S.W. 154, 155 (Ky. 1917)). 

[61] Id.

[62] Georgel v. Preece, No. 13-57-DLB-EBA, 2014 U.S. Dist. LEXIS 154678, at *18–19, *21–22 (E.D. Ky. Oct. 30, 2014).

[63] Id. at *2. 

[64] Id. at *2–3. 

[65] Id. at *3.

[66] Id.

[67] Id. at *16–17. 

[68] Id. at *20.

[69] Id.

[70] Id.

[71] Id. at *20–21. 

[72] Id.

[73] Id. at *21 (quoting State Farm Mut. Auto. Ins. Co. v. Marley, 151 S.W.3d 33, 42 (Ky. 2004)).

[74] See Christopher R. Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. C.R. L. J. 219, 220 (2009).

[75] Erwin Chemerinsky, Constitutional Law 727 (Wolters Kluwer eds., 5th ed. 2017). 

[76] See id. at 728 (“Rational basis review is the minimum level of scrutiny that all laws challenged under equal protection must meet. All laws not subjected to strict or intermediate scrutiny are evaluated under the rational basis test.”). 

[77] See, e.g., Colin Callahan & Amelia Kaufman, Equal Protection, 5 Geo. J. Gender & L. 17, 23, 26 (2004). 

[78] Chemerinsky, supra note 75, at 728. 

[79] Id. (“The notion [that immutable characteristics warrant heightened scrutiny] is [predicated on the fact] that it is unfair to penalize a person for characteristics that the person did not choose and that the individual cannot change.”). 

[80] Id. at 730. Cf. Part III, infra pp. 12–14 (discussing the possibility under Privileges and Immunities Clause analysis that the distinction encroaches on the fundamental right to equal protection of the laws). The only other fundamental right which could possibly be encroached by the denial of the public policy exception is the fundamental right to travel. The Supreme Court has made clear that “freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” Dunn v. Blumstein, 405 U.S. 330, 338 (1972) (citation omitted). Thus far, however, the Supreme Court’s jurisprudence concerning the fundamental right to travel has primarily concerned state durational residency requirements. See id. at 334; Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 900–01, 907 (1986). Since the denial of the public policy exception is not a durational residency requirement, it is unlikely such a denial implicates any fundamental right as to require strict scrutiny. 

[81] See, e.g., Chemerinsky, supra note 75, at 728. 

[82] Romer v. Evans, 517 U.S. 620, 623–24, 635 (1996). 

[83] Id. at 635.

[84] Id. at 634 (quoting United States Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).

[85] Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 882–83 (1985).

[86] Id. at 878.

[87] State Farm Mut. Auto. Ins. Co. v. Marley, 151 S.W.3d 33, 41 (Ky. 2004) (Cooper, J., dissenting). 

[88] See Romer, 517 U.S. at 635.

[89] See State Farm Mut. Auto. Ins. Co. v. Hodgkiss-Warrick, 413 S.W.3d 875, 883 (Ky. 2013) (explaining that “nothing requires a Kentucky court to interfere with the balance Pennsylvania has chosen for its citizens.”) (citation omitted). 

[90] See, e.g., Woods v. Std. Fire Ins. Co., 411 F. Supp. 3d 397, 404 (E.D. Ky. 2019); Schardein v. State Auto. Ins. Co., No. 12-288-C, U.S. Dist. LEXIS 180746 *4 (W.D. Ky. Dec. 21, 2012).

[91] Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 869 (1985).

[92] Id.

[93] U.S. Const. art. IV, § 2, cl. 1.

[94] Chemerinsky, supra note 75, at 476. 

[95] Duncan v. Louisiana, 391 U.S. 145, 166 (1968) (“What more precious ‘privilege’ of American citizenship could there be than that privilege to claim the protections of our great Bill of Rights?”).

[96] Blake v. McClung, 172 U.S. 239, 249 (1998).

[97] United Bldg. & Constr. Trades Council v. Camden, 465 U.S. 208, 219 (1984) (“[T]he pursuit of a common calling is one of the most fundamental of those privileges protected by the [Privileges and Immunities] Clause.”).

[98] Sup. Ct. of N.H. v. Piper, 470 U.S. 274, 281 (1985) (discussing the privileges and immunities clause in terms of a particular trade); Toomer v. Witsell, 334 U.S. 385, 395 (1948) (discussing the privileges and immunities clause in terms of paying an equal licensing fee).

[99] Baldwin v. Fish & Game Comm’n, 436 U.S 371, 388 (1978) (holding that elk hunting by nonresidents in Montana was not a fundamental right under the Privileges and Immunities Clause).

[100] See Robert H. Jackson, Full Faith and Credit—The Lawyer’s Clause of the Constitution, 45 Colum. L. Rev. 1, 2 (1945).

[101] Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249, 257 (1992).

[102] Id.; Hughes v. Fetter, 341 U.S. 609, 613 (1951) (holding that a state’s refusal to enforce the law of the state where the injury occurred violates the Full Faith and Credit Clause).

[103] Laycock, supra note 101, at 265. 

[104] Id. at 258–59.

[105] See id. at 268, 278.

[106] E.g., Baldwin v. Fish and Game Comm’n., 436 U.S. 371, 380 (1978) (noting that “the contours of [the Privileges and Immunities Clause] are not well developed”).

[107] Kermit Roosevelt III, The Myth of Choice of Law: Rethinking Conflicts, 97 Mich. L. Rev. 2448, 2517 (1999).

[108] Id. at 2453.

[109] Laycock, supra note 101, at 268, 278.

[110] Id. at 266.

[111] See Part II, supra pp. 9­–12.

[112] Laycock, supra note 101, at 266.

[113] See id. at 257 (noting that the Court has not invalidated a state conflict-of-law decision under any constitutional provision since 1951).

[114] Laycock, supra note 101, at 266.

[115] U.S. Const.  amend. XIV (emphasis added).

[116] Laycock, supra note 101, at 266.

The USMCA: An Ideal "New NAFTA?"

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Robert HudsonI

Introduction 

On December 8th, 1993, President Bill Clinton signed the North American Free Trade Agreement (“NAFTA”), a treaty that eliminated trade barriers between the United States, Canada, and Mexico.2 At the time, Mexico’s tariffs were five times higher than the United States’ tariffs.3Supporters of the agreement touted job creation and lower costs for consumers, but detractors warned it would cause a “giant sucking sound” of jobs flowing to Mexico.4 After signing, President Clinton remarked, “I believe that NAFTA will create a million jobs in the first five years of its impact. And I believe that that is many more jobs than will be lost, as inevitably some will be as always happens when you open up the mix to a new range of competition.”[5]

As President Clinton candidly observed, free trade agreements can reshape industries and leave many people unemployed for a period of time. About one-third of U.S. residents do not support free trade.[6] Unlike free trade’s immediate burden of worker displacement, free trade benefits typically indirectly filter through the larger populations over time.[7] Free trade agreements can make products less costly for consumers, spur economic growth, and encourage technological advances through increased competition.[8] Economists generally agree that the “diffuse and long-term benefits” of free trade outweigh the “concentrated short-term costs.”[9]

NAFTA and its successor agreement, the United States-Mexico-Canada Agreement (“USMCA”), embody the free trade debate.[10] NAFTA brought lower prices to consumers and allowed U.S. agriculture to flourish with tariff-free exports to Mexico, but it contributed to the U.S. manufacturing decline by incentivizing companies to outsource to low-wage regions in Mexico.[11] Noting the manufacturing job loss, President Trump negotiated the USMCA, often referred to as the “new NAFTA,” which replaced NAFTA on July 1, 2020.[12] As this Note will discuss, the USMCA strays away from free trade principles in an effort to stimulate U.S. manufacturing.[13]

This Note addresses the USMCA’s key impacts in comparison to NAFTA. Because Mexico is one of the U.S.’s largest trade partners and because U.S. trade with Mexico is a common subject of political debate, this Note focuses primarily on NAFTA and the USMCA as they relate to the U.S.-Mexico trade relationship.[14] Part I of this Note provides an overview of NAFTA and the USMCA. Part II discusses NAFTA’s effects on the U.S. agricultural sector, a key beneficiary of NAFTA, and argues that the USMCA is a slight improvement over NAFTA for that sector. Part III analyzes NAFTA’s effects on the U.S. manufacturing sector and argues that the USMCA poses significant risks to that sector. Finally, part IV concludes by advocating that the USMCA is unlikely to lead to substantial U.S. economic improvements over NAFTA.

I. Overview of NAFTA and the USMCA

A.  NAFTA Ushered in an Era of Increased Trade and Large Deficits

Technological developments and increasing trade with other countries complicate the determination of NAFTA’s precise effects on the North American economy.[15] Still, the agreement clearly proliferated trade between the North American countries.[16] From 1993 to 2015, trade between the United States and Mexico more than quintupled, increasing from $85.2 billion to $481.5 billion.[17]

NAFTA simultaneously ushered in unprecedented trade deficits with Mexico. A trade deficit occurs when a country imports more than it exports.[18] The world’s most prosperous countries often run trade deficits in certain areas, but elected officials and voters generally prefer trade surpluses.[19] In the nine years immediately preceding NAFTA, the U.S. averaged a $1.5 billion goods trade deficit with Mexico, and enjoyed a surplus three out of the nine years.[20] In NAFTA’s first ten years, the U.S. goods trade with Mexico averaged a $21.8 billion deficit which continues to grow.[21]NAFTA went into force on January 1, 1994.[22] Goods trade with Mexico between 1994 and 2019 averaged a $47.6 billion deficit, including a staggering $101.4 billion in 2019.[23] Since 1995, the U.S. has not experienced a single goods trade surplus with Mexico.[24]

These trade deficits are more than just numbers—they represent U.S. workers forced to change careers in an uncertain time. By 2010, trade deficits with Mexico eliminated an estimated 682,900 jobs, 60% of which were in manufacturing.[25] Manufacturing employment in the U.S. declined by 30% between 1993 and 2016.[26] Mexico often experienced manufacturing trade deficits with the U.S. before NAFTA, but the country now enjoys a manufacturing trade surplus of over $58 billion.[27] Abandoned factories and displaced workers in Ohio and Michigan illustrate the effects of the post-NAFTA trade imbalance with Mexico.[28] Meanwhile, U.S. farmers excelled under NAFTA.[29] The U.S. experienced an agricultural trade surplus with Mexico for twenty of the agreement’s first twenty-three years.[30]

Since the beginning of his campaign, President Trump repeatedly called for the repeal or renegotiation of NAFTA, referring to it as the “worst trade deal in history.[31] In May of 2018, Trump imposed tariffs on steel and aluminum imports from Mexico and Canada, effectively violating NAFTA.[32] Less than a week later, Mexico enacted retaliatory tariffs on various U.S. exports to Mexico, including agricultural products.[33] Canada followed suit and enacted similar tariffs in July 2018.[34]

B. The USMCA Emerges as the “New NAFTA”

On September 30, 2018, the dust settled from the trade disputes and the United States, Mexico, and Canada negotiated a NAFTA replacement: the USMCA.[35] The USMCA retains tariff-free treatment for all products that were tariff-free under NAFTA, but also provides farmers with new access to Canadian markets.[36] The USMCA aims to revitalize U.S. manufacturing by raising labor standards for Mexican workers and employing “rules of origin” provisions, which condition tariff-free treatment on a certain percentage of a finished good’s components being manufactured in the NAFTA region.[37]

II. U.S. Agriculture: NAFTA vs. The USMCA

A. U.S. Agriculture Under NAFTA

i.  The U.S. Agricultural Sector Flourished Under NAFTA

U.S. farmers fared well under NAFTA. Over eighty agricultural groups and corporations, representing every sector of the agricultural industry, petitioned jointly to the U.S. Secretary of Commerce explaining NAFTA’s positive impacts on the industry.[38] Removal of trade barriers within the NAFTA region gave U.S. farmers access to new customers, which massively increased agricultural exports.[39] Under NAFTA, U.S. agricultural exports to Mexico more than quintupled.[40]

NAFTA helped Mexico and Canada to become critical sources of supply and demand for U.S. farmers.[41] According to the United States Department of Agriculture (“USDA”) NAFTA supported 25,000 jobs related to corn farming and facilitated one-third of U.S. pork exports and over half of U.S. vegetable exports.[42] NAFTA set the stage for Mexico to become the U.S.’s top export customer for several U.S. grown products, including beef, rice, soybean meal, corn sweeteners, and apples.[43]

U.S. government subsidies, particularly with respect to corn production, helped American farmers excel under NAFTA.[44] Mexico is the U.S. corn industry’s biggest customer.[45] Before NAFTA, the Mexican government limited corn imports to times when its own production failed to meet the country’s needs.[46] NAFTA prohibited Mexico from limiting its corn imports but still allowed the U.S. to subsidize its farmers.[47] After NAFTA, U.S. corn quickly flooded the Mexican market.[48] More corn drove down the price of corn in Mexico, which meant that many Mexican farmers could no longer sell corn at a price sufficient to support themselves.[49] In NAFTA’s first decade, over 900,000 Mexican farmers lost their jobs.[50]

NAFTA is not without criticism from U.S. farmers. The last few decades have marked a decline of local family farms and the rise of large, industrial farms.[51] NAFTA increased the “size of the pie,” but industrial farms now “control most of the slices.”[52] Despite the massive increase in agricultural exports, America shed over 100,000 farms between 2011 and 2018.[53]  NAFTA and globalization in general likely contributed to the industry consolidation.[54] Generally, free trade agreements allow farmers from all over the world to sell their crops in U.S. markets, which makes prices lower and more volatile.[55] Large industrial farms typically operate with lower costs, which allows them to sell at lower prices and withstand price fluctuations.[56]

According to the USDA, the change in industry composition “reflects a farm economy experiencing rapid technological change.”[57] Farms that implement new technology can produce more crops at cheaper prices, which naturally drives out smaller, less efficient competing farmers. Ultimately, NAFTA simply facilitated unobstructed access to new markets, which expanded the industry and naturally propelled larger businesses to the top.[58]Placing trade barriers against Mexico, inevitably prompting retaliatory tariffs and reducing demand for U.S. crops from all farmers, is simply not a preferred method for curbing consolidation in the agricultural sector.

Farmers also criticize NAFTA because it allowed Canada to retain a pricing system that discriminated against U.S. farmers.[59] Canada applies a strict import quota system on dairy products and levies tariffs as high as 300% for imports that exceed the quota.[60] In 2017, Canada imposed even more protections for its dairy industry by implementing a milk pricing system.[61] Fortunately, the USMCA limits Canada’s ability to impose these trade barriers.[62]

ii. Post-2015 Agricultural Trade Deficits Illustrate 

the Danger of Trade Barriers

NAFTA’s success for the agricultural sector may be reflected by the U.S.-Mexico agricultural trade balance. The U.S. experienced an agricultural trade surplus with Mexico every year between 1991 and 2015.[63] Between 2016 and 2018, however, the U.S. averaged a $6 billion trade deficit with Mexico.[64] Three factors primarily caused these deficits.

 First, the U.S. dollar has been relatively strong compared to the Mexican Peso since 2015.[65] A stronger currency results in cheaper imports and more expensive exports.[66] With most countries, the value of its currency fluctuates with the strength of the economy.[67] Generally, the stronger the economy, the higher-priced the currency.[68] Lower priced currency makes a country’s exports more competitive.[69] For example, suppose that the dollar is priced highly so that two pesos are worth one dollar. Mexican citizens would have to spend two pesos to buy a U.S. product worth one dollar, but U.S. residents would only need to spend one dollar to buy a Mexican product worth two pesos. In fact, “Mexico’s exchange rates exhibit almost perfect negative correlation with [the U.S.] agricultural trade surplus and deficit.”[70] As the dollar strengthens, exports to Mexico decrease, adversely affecting the U.S. trade balance.[71]

Second, the prices of primary U.S. agricultural exports fell.[72] If the crops sold in 2017 were sold at 2012 prices, when crops were selling at a record high, the deficit would have been drastically reduced.[73] Third, President Trump’s trade disputes increased the deficits. In response to President Trump’s threats to withdraw from NAFTA, Mexican farming operations lost confidence in the U.S. as a reliable supplier and began to search for alternate sources.[74] In 2017, Mexican buyers imported ten times more corn from Brazil than in 2016.[75]  

In May 2018, President Trump enacted tariffs against Mexican imports, to which Mexico responded with retaliatory tariffs.[76] The Congressional Research Service (“CRS”) predicted that retaliatory tariffs could adversely impact U.S. farmers by eroding their competitiveness in foreign markets.[77] The CRS also noted that if the tariffs remain in effect long-term, U.S. farmers could lose their market share as suppliers seek out cheaper alternatives.[78] A Purdue University study predicted U.S. agricultural exports could be reduced by as much as $8 billion after markets adjust to the retaliatory tariffs.[79]

The effects of Mexico’s past retaliatory tariffs lend credence to these predictions. In response to the U.S.’s violation of NAFTA trucking provisions, Mexico levied retaliatory tariffs against U.S. agricultural products from 2009 until 2011.[80] During this period of tariffs, U.S. agricultural exports to Mexico fell by $1.1 billion—a reduction of nearly 22%.[81] Mexico’s history of retaliatory tariffs illustrates the need for the USMCA to retain tariff-free treatment of U.S. agricultural exports. 

 B. The USMCA Improves the U.S. Agricultural Trade Position

The USMCA leaves the NAFTA agricultural provisions largely unchanged.[82] Under the USMCA, “[a]ll food and agriculture products that [had] zero tariffs under the North American Free Trade Agreement (NAFTA) will remain at zero tariffs.”[83] As its key agricultural change, the USMCA expanded access to the Canadian market.[84] The USMCA keeps Canada’s import quota and dairy pricing systems largely in place but allows the U.S. to export more “class 7” dairy products to Canada.[85] This increased dairy access amounts to an additional 2.6% of Canada’s dairy market.[86] The USMCA also allows the U.S. to export to Canada more chicken, turkey, and eggs.[87]

The U.S. Farm Bureau predicts that the USMCA will increase U.S. agricultural exports by $2 billion and increase gross domestic product by $65 billion.[88] An October 2018 study by the Farm Foundation more conservatively estimates that the USMCA would increase agricultural exports to Canada by $450 million, which is about 1% of current exports under NAFTA.[89] The USMCA will likely help U.S. farmers, because it preserves the prohibition of trade barriers between the North American countries, reduces uncertainty caused by retaliatory tariffs, and removes Canadian trade barriers. The USMCA’s potential effect on U.S. manufacturing, however, is far less clear. 

III. U.S. Manufacturing: NAFTA vs. The USMCA

A. U.S. Manufacturing Suffered Under NAFTA, But Not Because of NAFTA

i. The U.S. Manufacturing Decline

Foreign goods, in 1960, made up only 8% of U.S. purchases.[90] By 2011, that number rose to nearly 60%.[91] As U.S. residents purchased less U.S.-made goods, U.S. factories laid off workers.[92] Since January 2000, U.S. manufacturing employment has fallen approximately 30%, from 17.2 million jobs to 12.2 million jobs.[93] The U.S. automobile industry alone lost 350,000 jobs—approximately 1/3 of all workers—during NAFTA’s first two decades.[94]

Some economists attribute the manufacturing decline to increased technology rather than free trade.[95] Automation allows factories to produce more products using fewer employees, which causes job loss.[96] Still, NAFTA’s enactment clearly coincides with a decrease in U.S. manufacturing and an increase in Mexican manufacturing. U.S. foreign direct investment (“FDI”) in Mexico statistics support this conclusion.[97] Generally, FDI occurs when a company invests in operations in a different country.[98] Businesses commonly produce FDI by building a new factory in another country or by purchasing an existing business in another country.[99] From 1993 to 2017, U.S. FDI in Mexico increased over 600% from $15.2 billion to $109.7 billion.[100] Under NAFTA, more U.S. companies invested resources in their operations in Mexico.[101]

The disparity in manufacturing wages between the U.S. and Mexico incentivizes companies to relocate south of the border.[102] For example, in the late 2000s, Delphi Automotive, once one of the largest employers in northern Ohio, relocated their factory from northern Ohio to Mexico.[103]Delphi employees in Ohio made $30 per hour, but Delphi employees in Mexico earn only $1 per hour.[104] Another company, Brake Parts Inc., manufactured brake calipers in California for nearly thirty years.[105] In 2015, Brake Parts laid off 280 workers and relocated their factory to Mexico.[106] A Brake Parts executive explained that the company’s competitors were located in Mexico where they could pay workers only $3.50 to $4 per hour.[107] Yet another company, Rexnord Corp., laid off 300 workers and moved their factory from Indianapolis to Mexico.[108] Relocation to Mexico reduced Rexnord’s labor costs from $25 per hour with benefits to only $3 per hour without benefits—a cost savings of $15.5 million per year.[109] Mondelez International, another company that relocated to Mexico, claimed its move saved $46 million per year.[110]

Low wages in Mexico present a tempting opportunity to lower costs and maximize profits. Some may say greed drives these moves, but relocating can become a borderline necessity for a company after its competitors relocate. It is very difficult for a company paying workers $25 per hour to compete with a company in the same industry paying workers $3 per hour for the same work. Before NAFTA, the U.S. could mitigate the incentive to relocate by enacting trade barriers, but NAFTA prevented any such remedy.[111]

ii. China May Be Primarily Responsible for the U.S. Manufacturing Decline 

Many economists argue that China, not NAFTA, caused the decline in U.S. manufacturing.[112]  From 2012 to 2019, the U.S. averaged a $354 billion trade deficit with China and only a $67.9 million trade deficit with Mexico.[113] The trade deficit with China has quintupled since 2001, the year China joined the World Trade Organization (“WTO”).[114] This five-fold increase caused 3.4 million lost U.S. jobs, nearly 75% of which were in manufacturing.[115] FDI figures also suggest that U.S. companies are diverting an increasing amount of resources to China operations. From 2001 to 2019, U.S. FDI in China increased ten-fold from approximately $12 billion to approximately $116 billion.[116] According to a professor at the Wharton School of the University of Pennsylvania, an Ivy League business school, the U.S.-China trade imbalance means that “for every job we have lost in the U.S. to Mexico, five [jobs] were lost to China.”[117]

Cheap Chinese currency and low Chinese wages power the U.S. job loss.[118] China controls its currency prices so that its currency is almost always cheaper than the dollar, which makes their goods cheaper than U.S. goods.[119] Additionally, China’s manufacturing sector is competitive because the country’s low cost of living and subpar workers’ rights allow companies to pay their workers very low wages.[120] In 2018, Chinese manufacturing workers were paid an average $5.51 per hour,[121] while U.S. manufacturing workers were paid an average of $26.97 per hour—a disparity of over $20 per hour.[122] Other Asian countries pay as little as $2.73 per hour.[123] While Chinese wages are consistently rising in comparison to other Asian countries, U.S. manufacturing wages remain far less competitive than Chinese manufacturing wages.[124]

iii. U.S. Manufacturing May Have Fared Worse Without NAFTA

Many economists credit NAFTA for making the U.S. manufacturing more globally competitive by developing supply chains across North America.[125] Much of the trade between the U.S. and Mexico occurs in the context of production sharing, with each country involved in different manufacturing steps with respect to the same final product.[126]  Taking advantage of cheap labor, many companies produce basic parts in Mexico and ship them to the U.S. to assemble the more complicated finished products.[127] Despite the U.S. automobile industry shedding a third of its workforce, the total value added by car and car part makers in the U.S. is only slightly lower than it was in NAFTA’s first year.[128] Underscoring the integration of manufacturing between the U.S. and Mexico, Delphi Automotive’s CFO warned that if the border were closed to trade, “in less than a week, all of the people who voted for [Trump] in Michigan and Ohio would be out of work.”[129]

The automobile industry is especially integrated between the U.S. and Mexico. For example, the Honda CR-V is assembled in Mexico, but roughly 70% of its content is either U.S. or Canadian.[130] This supply chain integration contributes to the 4.9 million U.S. jobs created by trade with Mexico.[131] This means that one out of twenty-nine U.S. jobs depends on the country’s economic relationship with Mexico.[132] Gordon Hanson, a professor at the University of California, San Diego, explained to the New York Times that “[w]ithout the ability to move lower-wage jobs to Mexico we would have lost the whole [automobile] industry.”[133]

From a cost perspective, low wages in Mexico provide an integral way for the U.S. to compete with Asia’s wages.[134] Without NAFTA, it could be cheaper for companies to simply abandon the U.S.’s expensive labor entirely rather than incorporate the U.S. into their supply chains. A trade agreement that levies high tariffs on U.S. imports from Mexico could eliminate the cost feasibility of the NAFTA region. Instead of forcing manufacturing jobs back into the United States, high tariffs against Mexico have the potential to do just the opposite. 

B. The USMCA and Manufacturing

i. “Rules of Origin” Provisions

The USMCA implements “rules of origin” provisions to encourage manufacturers to employ more U.S. workers.[135] Rules of origin provisions condition tariff-free treatment on exported finished goods using a certain percentage of components that were manufactured in the NAFTA region.[136] Goods that do not meet the rules of origin requirements are subject to the “most-favored-nation” tariff rate.[137] The USMCA increases the required percentage of components manufactured in a NAFTA region for several manufacturing industries, including automobiles, textiles, and cosmetics.[138] The automobile rules of origin provisions may have the largest impact on the North American economy. At 3.5% of the U.S. gross domestic product, the automobile industry is one of the most important segments of the U.S. economy.[139]

The USMCA contains several rules of origin provisions intended to stimulate growth in the U.S. automobile industry. The USMCA increases NAFTA’s rule of origin requirement by requiring at least 75% of an automobile’s components to be manufactured in the NAFTA region.[140] That number was 62.5% under NAFTA.[141] In addition, 70% of a vehicle’s steel and aluminum must originate in North America.[142]

The USMCA’s automobile rules of origin requirements could incentivize automobile producers to incorporate more of their supply chains in the NAFTA region. Under NAFTA, automobile producers have arranged their supply chains in the most efficient ways possible including sourcing some parts from outside of the NAFTA region.[143] Faced with the new 75% requirement, businesses will likely compare the costs of changing their supply chains to the cost of a tariff and take whichever route is cheaper. Because automobile companies generally prefer to keep component sources near assembly plants to minimize delays, the 75% requirement may prompt companies to integrate more of their supply chains into the NAFTA-region.[144]

If businesses incorporate more of their supply chains into the NAFTA region, employment numbers will rise, but so will prices for consumers.[145] If automobile manufacturers modify their pre-USMCA cost-minimizing supply chains to source more parts from the NAFTA region, they will likely pay more for those parts than before.[146] Manufacturers may be able to absorb a portion of the costs as lost profit or renegotiate supply contracts to push costs up the supply chain, but some of the cost increase will inevitably flow to consumer prices.[147]

Automobile executives anticipate cost increases caused by the USMCA.[148] In a 2018 survey of 100 U.S.-based automotive executives, 63% expected USMCA-related production cost increases and 58% believed the costs will be passed onto consumers.[149] Many of the executives already took concrete steps to comply with the new USMCA requirements.[150] Thirty-six percent are negotiating with suppliers to seek production-related cost savings and “[s]eventy-eight percent cite[d] finding North American suppliers or identifying alternate suppliers as a near-term priority for their supply chains.”[151]

While the 75% requirement could increase North American employment, it could lead to the opposite result, with supply chains becoming even more outsourced. To receive tariff-free treatment under NAFTA, companies had to incorporate at least 62.5% of their supply chains in the NAFTA region.[152] If increasing to 75% proves too burdensome, simply paying the tariff will become the preferred option. After paying the tariff, there will be no trade barrier incentives to encourage companies to incorporate even 62.5% of their supply chains in the NAFTA region. Absent trade agreements levying tariffs against other countries, businesses will be free to source parts from anywhere in the world. 

ii. Automobile Wage Provisions

Even if the rules of origin requirements bring jobs back to the NAFTA region, many of those jobs will go to lower-cost regions in Mexico. To address this issue, the USMCA contains several wage and workers’ rights provisions that increase the cost of doing business in Mexico.[153] First, “[a]t least 40% of the value of a passenger car and 45% of a light truck must be made by workers earning at an average of $16 per hour.”[154]Second, Mexico must pass pro-unionization laws.[155] Automotive companies that do not meet the above requirements will be subject to the most-favored-nation tariff of 2.5%.[156] A committee will be formed to monitor Mexico’s progress on labor issues against clear benchmarks set by the agreement.[157] NAFTA did not contain any provisions related to wages or workers’ rights.[158]

Automobile manufacturers faced with the new USMCA wage provisions will therefore have three primary courses of action: (1) pay 40% to 45% of workers at least $16 per hour; (2) pay the 2.5% tariff and keep wages the same; or (3) if wages overseas are cheaper than wages in the NAFTA region, and that cost savings outweighs the costs and uncertainties associated with relocation, leave the NAFTA region for countries with cheaper wages.

The average hourly wage for automobile assembly workers in Mexico was $7.34 in 2017.[159] In the U.S., workers involved in motor vehicles and parts manufacturing were paid $23.50 per hour on average in 2019.[160] In China, the average automobile industry wage was between $5.00 and $6.00 per hour in 2017.[161] Automobile industry wages are even cheaper in other Asian countries. In India, for example, the average automobile industry wage was only $1.09 per hour in 2017.[162]

The USMCA wage provisions could incentivize manufacturers to hire more U.S. workers by making Mexican workers more expensive. However, the $16 per hour required wage is still almost $8 per hour less than the U.S. average automobile industry wage.[163] Therefore, it could also incentivize manufacturers to simply raise wages for their workers in Mexico. In response to the wage requirements, several automobile manufacturers in Mexico have already chosen to triple their Mexican wages rather than relocate to the U.S.[164] More importantly, it could cause automobile manufacturers to pay a tariff and leave Mexico for lower-cost regions, such as India or China.[165] If manufacturers in Mexico leave for Asia, connected manufacturers in the U.S. would likely lay off workers. 

USMCA proponents cite several points in arguing why manufacturers in Mexico will be unlikely to relocate to Asia. First, due to integrated supply chains, many North American car makers in the U.S. already conform with the requirement that 40% of the car be produced where the workers make at least $16 an hour.[166] Second, the USMCA contains a sunset clause, which allows the countries to renegotiate or end the agreement in as early as six years and provides for the agreement to expire automatically after sixteen years if not specifically renewed.[167] By injecting a layer of uncertainty into the USMCA provisions, the sunset clause discourages companies from relocating. If companies decide to move to another country, important USMCA provisions could completely change shortly after they establish their operations. Third, based on an assumption that free trade will continue, automobile companies have invested billions of dollars in new North American factories.[168] Moving to Asia would require millions, if not billions of dollars in new investments, all of which could prove too risky given the sunset clause and today’s tumultuous trade climate. 

Whether the USMCA will create more employment in the U.S. manufacturing sector depends on thousands of decisions by individual companies, including decisions that turn on factors aside from the USMCA. Still, the USMCA presents two points of certainty. First, its sourcing and wage provisions, by increasing costs, necessarily make Asia a more attractive business location from a cost standpoint. Second, if the USMCA works as intended and companies employ more U.S. workers, costs to automobile companies will rise, which will increase the price of U.S. cars and render them less competitive in the global marketplace.[169] 

IV.  Conclusion

The substantial difference between wages in the U.S. and competing countries undermines U.S. manufacturing’s ability to secure a competitive advantage. NAFTA allowed manufacturing companies to take advantage of low wages in Mexico while still employing U.S. workers by assembling basic parts in Mexico and undertaking more complex work in the U.S.[170] Though the U.S. lost millions of manufacturing jobs under NAFTA, even more could have lost their jobs to Asia without NAFTA.[171] The U.S. should preserve, rather than diminish, manufacturing companies’ ability to take advantage of low wages in Mexico while still employing U.S. workers.  

Through its protectionist labor, source, and trade requirements, the USMCA represents a bold, risky step in the wrong direction. The USMCA could create some U.S. jobs by encouraging companies to source more parts in North America and increasing labor costs in Mexico, but it will raise costs for automobile manufacturers and consumers. Because businesses will direct capital to its most profitable use, the USMCA’s added costs could encourage automobile companies to consider outsourcing to Asia even more. The USMCA will help U.S. farmers by slightly expanding market access into Canada, but these relatively modest agricultural gains could be substantially outweighed by the risks it poses to the much larger U.S. manufacturing industry. 

I J.D. Candidate 2021, University of Kentucky J. David Rosenberg College of Law; B.S. in Accounting and Economics, University of Kentucky. 

2 Anne Sraders, What Is NAFTA? History, Purpose and What It Means in 2019, TheStreet (Aug. 22, 2019, 12:34 PM), https://www.thestreet.com/politics/nafta-north-american-free-trade-agreement-14651970 [https://perma.cc/J7GJ-P3FJ].

3 M. Angeles Villarreal & Ian F. Fergusson, Cong. Research Serv., R42965, The North American Free Trade Agreement (NAFTA) 6 (May 24, 2017), https://fas.org/sgp/crs/row/R42965.pdf [https://perma.cc/X3E9-D7X7].

4 Andrew Chatzky et al., NAFTA and the USMCA: Weighing the Impact of North American Trade, Council on Foreign Rel. (Jul. 1, 2020, 8:00 AM), https://www.cfr.org/backgrounder/nafta-and-usmca-weighing-impact-north-american-trade [https://perma.cc/F3Y6-EXLK].

[5] Press Release, Office of the Press Secretary, Remarks by President Clinton, President Bush, President Carter, President Ford, And Vice President Gore in Signing of NAFTA Side Agreements (Sep.14, 1993) (archived by The White House), https://clintonwhitehouse6.archives.gov/1993/09/1993-09-14-remarks-by-clinton-and-former-presidents-on-nafta.html [https://perma.cc/EKS8-HF88].

[6] Mark Murray, Support for Free Trade Reaches New High in NBC/WSJ Poll, NBC News (Aug. 18, 2019, 9:00 AM), https://www.nbcnews.com/politics/meet-the-press/support-free-trade-reaches-new-high-nbc-wsj-poll-n1043601[https://perma.cc/74HN-WF8C].

[7] See Daniel Fried, Cong. Budget Off., How Preferential Trade Agreements Affect the U.S. Economy, 1–4 (Sept. 29, 2016), https://www.cbo.gov/publication/51924[https://perma.cc/P3GH-GDWS].

[8] See Brandon Scudder, Do Free Trade Agreements Encourage Economic Development in the U.S.?, NCBFAA, https://www.ncbfaa.org/Scripts/4Disapi.dll/4DCGI/cms/review.html?Action=CMS_Document&DocID=17730&MenuKey=pubs [https://perma.cc/7U6X-2JBR].

[9] Fried, supra note 7, at 1. 

[10] U.S–Mexico–Canada Agreement (USMCA), U.S. Customs and Border Prot., https://www.cbp.gov/trade/priority-issues/trade-agreements/free-trade-agreements/USMCA#:~:text=Entry%2Dinto%20Force,rules%20will%20continue%20to%20apply [https://perma.cc/C53D-4XLW].

[11] Chatzky et al., supra note 4.

[12] U.S.–Mexico–Canada Agreement (USMCA)supra note 10; Jessica Murphy & Natalie Sherman, USMCA Trade Deal: Who Gets What From 'New Nafta'?, BBC News(Oct. 1, 2018), https://www.bbc.com/news/world-us-canada-45674261 [https://perma.cc/KV62-V8HL].

[13] See United States–Mexico–Canada Trade Fact Sheet Rebalancing Trade to Support Manufacturing, Off. U.S. Trade Representative, https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement/fact-sheets/rebalancing [https://perma.cc/3UTH-XMM4] [hereinafter Rebalancing Trade to Support Manufacturing].

[14] Ken Roberts, Mexico is Now Top U.S. Trade Partner, Ahead of China, Canada, Forbes (Apr. 26, 2019, 5:07 AM), https://www.forbes.com/sites/kenroberts/2019/04/26/mexico-is-now-top-u-s-trade-partner-ahead-of-china-canada/?sh=6a1522a349fb [https://perma.cc/38SY-N9PK].

[15] See David Floyd, NAFTA's Winners and Losers, Investopedia (Nov. 11, 2020), https://www.investopedia.com/articles/economics/08/north-american-free-trade-agreement.asp/ [https://perma.cc/B2HT-AQQ8].

[16] Id.

[17] Id.

[18] Will Kenton, Trade Surplus, Investopedia (Nov. 22, 2020), https://www.investopedia.com/terms/t/trade-surplus.asp [https://perma.cc/6B9H-WZXC]; see also Jared Bernstein & Dean Baker, Why Trade Deficits Matter, Atlantic (Dec. 8, 2016), https://www.theatlantic.com/business/archive/2016/12/trump-trade-deficit/509912/  [https://perma.cc/9KRR-DJK8].

[19] See generally, James McBride & Andrew Chatzky, The U.S. Trade Deficit: How Much Does It Matter?, Council on Foreign Rel. (Mar. 8, 2019, 7:00 AM), https://www.cfr.org/backgrounder/us-trade-deficit-how-much-does-it-matter [https://perma.cc/BE47-LP7D] (discussing the arguments for and against trade deficits); see alsoBalance of Trade, Trading Econ., https://tradingeconomics.com/country-list/balance-of-trade [https://perma.cc/79U8-UCGV] (showing different countries with trade deficits). 

[20] Trade in Goods with Mexico, U.S. Census Bureau, https://www.census.gov/foreign-trade/balance/c2010.html [https://perma.cc/FQG7-EA3R]. Trade with foreign countries is measured in two forms: “goods” (also known as “merchandise”) trade and “services” trade which includes business and financial services. See M. Angeles Villarreal, Cong. Research Serv., IF11175, US-Mexico Trade Relations (April 9, 2019), https://fas.org/sgp/crs/row/IF11175.pdf [https://perma.cc/SX96-QDPA] [hereinafter Villarreal IF11175]. The U.S. Census Bureau defines “goods” as “[m]erchandise, supplies, raw materials, and products or any other item identified by a Harmonized System (HS) code,” and describes six types of import and export services: “Travel; Passenger Fares; Other Transportation; Royalties and License Fees; Other Private Services; and U.S. Government Miscellaneous Services” as well as an additional service category titled “Transfers Under U.S. Military Sales Contracts” for exports and “Direct Defense Expenditures” for imports. Foreign Trade: Trade Definitions, U.S. Census Bureau (Oct. 6, 2020), https://www.census.gov/foreign-trade/reference/definitions/index.html[https://perma.cc/8B2P-25BK]

[21] See Trade in Goods with Mexicosupra note 20. 

[22] Villarreal IF11175supra note 20.

[23] Trade in Goods with Mexicosupra note 20. The U.S. typically experiences a modest surplus in services trade with Mexico, but the goods trade deficit overshadows it tenfold. Villarreal IF11175supra note 20.

[24] Trade in Goods with Mexicosupra note 20.

[25] NAFTA, 20 Years Later: Do the Benefits Outweigh the Costs?, Wharton Univ. of Pa. (Feb. 19, 2019), https://knowledge.wharton.upenn.edu/article/nafta-20-years-later-benefits-outweigh-costs/ [https://perma.cc/2HPA-MAC3].

[26] Floyd, supra note 15.

[27] Id.

[28] See Kate Linthicum, A Tale of Two Cities: What Happened When Factory Jobs Moved from Warren, Ohio, to Juarez, Mexico, L.A. Times (Feb. 17, 2017, 11:51 AM), https://www.latimes.com/world/mexico-americas/la-fg-mexico-us-factories-20170217-htmlstory.html [https://perma.cc/X8ML-HNEQ].

[29] Jenny Hopkinson, Cong. Research Serv., IN10962, Agricultural Trade with Mexico and the Preliminary U.S.-Mexico Agreement in NAFTA Negotiations 1 (Aug. 29, 2018), https://crsreports.congress.gov/product/pdf/IN/IN10962 [https://perma.cc/FKV7-PBHQ] [Hopkinson IN10962].

[30] Farmers Fear Impact of U.S. Exit from NAFTA, CBS News (May 19, 2017, 11:03 AM), https://www.cbsnews.com/news/farmers-fear-impact-of-u-s-exit-from-nafta/[https://perma.cc/JEB9-PVN3]

[31] Clark Packard, The New U.S.-Mexico-Canada Trade Deal Can Work for Everyone, Foreign Pol’y (July 15, 2019, 3:01 PM), https://foreignpolicy.com/2019/07/15/the-new-u-s-mexico-canada-trade-deal-can-work-for-everyone/ [https://perma.cc/VXS6-U6TY].

[32] Heather Long, Trump has Officially Put More Tariffs on U.S. Allies Than on China, Wash. Post (May 31, 2018, 5:34 PM), https://www.washingtonpost.com/news/wonk/wp/2018/05/31/trump-has-officially-put-more-tariffs-on-u-s-allies-than-on-china/ [https://perma.cc/Z43J-RC8D].

[33] Ana Swanson & Jim Tankersley, Mexico, Hitting Back, Imposes Tariffs on $3 Billion Worth of U.S. Goods, N.Y. Times (June 5, 2018), https://www.nytimes.com/2018/06/05/us/politics/trump-trade-canada-mexico-nafta.html [https://perma.cc/8RU9-E5PP].

[34] Canada Retaliatory Tariffs on US Goods Come Into Force, BBC News (July 1, 2018), https://www.bbc.com/news/world-us-canada-44635490 [https://perma.cc/GV8U-ELF5].

[35] Katie Dangerfield, NAFTA Deal Reached: Canada, U.S., Mexico Reach Trade Agreement Under New Name, Global News (Sept. 30, 2018, 9:13 PM), https://globalnews.ca/news/4500068/nafta-2018-agreement-finalized/ [https://perma.cc/VW6H-XPV8].

[36] See FAS Directive 0202.19, Secretary Perdue Statement on USMCA Agreement (U.S.D.A. 2019), https://www.fas.usda.gov/newsroom/secretary-perdue-statement-usmca-agreement [https://perma.cc/EV96-TUVN]; Rob Portman, USMCA is a Needed Upgrade From NAFTA. Let’s Get it Passed., Wash. Post (Sept. 9, 2019, 2:17 PM), https://www.washingtonpost.com/opinions/usmca-is-a-needed-upgrade-from-nafta-lets-get-it-passed/2019/09/09/c31e1862-d015-11e9-b29b-a528dc82154a_story.html[https://perma.cc/9LKP-RFSD].

[37] See Rebalancing Trade to Support Manufacturing, supra note 13.

[38] NAFTA’s Impact on U.S. Agriculture, CME Group (May 1, 2018), https://www.cmegroup.com/education/articles-and-reports/naftas-impact-on-us-agriculture.html[https://perma.cc/2NZH-B4S2].

[39] Jacob Bunge, U.S. Farmers Welcome New North American Trade Pact, Wall St. J. (Oct. 1, 2018, 2:01 PM), https://www.wsj.com/articles/u-s-farmers-welcome-new-trade-pact-with-mexico-canada-1538401359 [https://perma.cc/B625-6X46].

[40] From 1991 to 1993, U.S. agricultural exports to Mexico averaged $3.5 billion which jumped to over $18 billion from 2014 to 2017. Hopkinson IN10962, supra note 29. 

[41] Bunge, supra note 39.  

[42] Id.

[43] Kevin Skunes, NAFTA has Helped Grow American Agriculture for Two Decades, Hill (Jan. 23, 2018, 5:45 PM), https://thehill.com/opinion/energy-environment/370363-nafta-has-helped-grow-american-agriculture-for-two-decades [https://perma.cc/TMV2-BX5S]

[44] Renée Alexander, Want to Understand the Border Crisis? Look to American Corn Policy, Counter (July 24, 2018, 12:51 PM), https://thecounter.org/border-crisis-immigration-mexican-corn-nafta/ [https://perma.cc/2Z6D-VMNQ].

[45] NAFTA’s Impact on U.S. Agriculturesupra note 38. In 2017 alone, the U.S. exported $2.7 billion worth of corn to Mexico. Id.

[46] Alexander, supra note 44.

[47] Id.

[48] Id.

[49] Id.

[50] Shasta Darlington & Patrick Gillespie, Mexican Farmer’s Daughter: NAFTA Destroyed Us, CNN Bus. (Feb. 9, 2017, 12:19 PM), https://money.cnn.com/2017/02/09/news/economy/nafta-farming-mexico-us-corn-jobs/index.html [https://perma.cc/8EGA-T3GK]. Many of these displaced farmers decided to work in factories, which contributed to the abundance of cheap labor in Mexico. See Linthicum, supra note 28. Now, most of Mexico’s agricultural output comes from large industrial farming operations. See Alexander, supra note 44.

[51] Kristina Johnson & Samuel Fromartz, NAFTA’s ‘Broken Promises’: These Farmers Say They Got The Raw End Of Trade Deal, NPR (Aug. 7, 2017, 7:00 AM), https://www.npr.org/sections/thesalt/2017/08/07/541671747/nafta-s-broken-promises-these-farmers-say-they-got-the-raw-end-of-trade-deal [https://perma.cc/8HV9-2Q38].  

[52] Id.

[53] Alana Semuels, ‘They're Trying to Wipe Us Off the Map.’ Small American Farmers Are Nearing Extinction, Time (Nov. 27, 2019, 1:16 PM), https://time.com/5736789/small-american-farmers-debt-crisis-extinction/ [https://perma.cc/8YFX-MY7A]

[54] Johnson & Fromartz, supra note 51.

[55] Semuels, supra note 53. 

[56] See id.

[57] Christopher Burns, The Number of Midsize Farms Declined From 1992 to 2012, But Their Household Finances Remain Strong, U.S. Dep’t of Agric. (Dec. 5, 2016), https://www.ers.usda.gov/amber-waves/2016/december/the-number-of-midsize-farms-declined-from-1992-to-2012-but-their-household-finances-remain-strong/[https://perma.cc/D3E7-674Z]

[58] Johnson & Fromartz, supra note 51.  

[59] Katie Lobosco, Why Canada's Dairy Market is a Target in NAFTA Talks, CNN Pol. (Sep. 5, 2018, 8:33 PM), https://www.cnn.com/2018/09/05/politics/nafta-canada-dairy-tariffs/index.html [https://perma.cc/XFG2-KZM6]

[60] Id.

[61] Id.

[62] See Heather Long, The USMCA is Finally Done. Here’s What is in It., Wash. Post (Dec. 10, 2019, 5:13 PM), https://www.washingtonpost.com/business/2019/12/10/usmca-is-finally-done-deal-after-democrats-sign-off-heres-what-is-it/ [https://perma.cc/737S-SZS4] [hereinafter The USMCA is Finally Done].

[63] See Renée Johnson, Cong. Research Serv., IF10800, Agric. Trade Balances Under NAFTA (Dec. 29, 2017), https://nationalaglawcenter.org/wp-content/uploads//assets/crs/IF10800.pdf [https://perma.cc/VHV6-FHK9].

[64] Philip Martin, Mexico-US Agricultural Trade, Wilson Center (June 24, 2020), https://www.wilsoncenter.org/article/mexico-us-agricultural-trade#:~:text=The%20US%20also%20has%20a,of%20%246%20billion%20a%20year [https://perma.cc/F5BC-55U6].

[65] Steve Burak et al., Gambling on Exports: A Review of the Facts on U.S. Agricultural Trade, Farmdoc Daily (June 8, 2018), https://farmdocdaily.illinois.edu/2018/06/gambling-on-exports-review-facts-us-agri-trade.html [https://perma.cc/R2M8-Z3JZ]

[66] Id.

[67] See Tejvan Pettinger, Is a Strong Economy Generally Accompanied by a Strong Currency?, Econ. Help (Nov. 7, 2018), https://www.economicshelp.org/blog/143224/economics/is-a-strong-economy-generally-accompanied-by-a-strong-currency/ [https://perma.cc/P5PN-3F6D].

[68] Id.

[69] Burak et al., supra note 65; see also Pettinger, supra note 67. 

[70] Burak et al., supra note 65.

[71] See id. 

[72] Id.

[73] Id.

[74] P.J. Huffstutter & Adriana Barrera, Exclusive: As Trump Trashes NAFTA, Mexico Turns to Brazilian Corn, Reuters (Feb. 22, 2018, 7:35 AM), https://www.reuters.com/article/us-trump-effect-corn-exclusive/exclusive-as-trump-trashes-nafta-mexico-turns-to-brazilian-corn-idUSKCN1G61J4 [https://perma.cc/6XDP-PAA7]

[75] Id.

[76] Jenny Hopkinson, Cong. Res. Serv., R45448, Profiles and Effects of Retaliatory Tariffs on U.S. Agric. Exports 1 (Dec. 31, 2018), https://crsreports.congress.gov/product/pdf/R/R45448 [https://perma.cc/Q262-VY3W].

[77] Id.

[78] Id.

[79] Maksym Chepeliev et al., How U.S. Agriculture Will Fare Under the USMCA and Retaliatory Tariffs 18 (Glob. Trade Analysis Project, Working Paper No. 84, 2018). 

[80] ERS Directive WRS-15-01, NAFTA at 20: North America’s Free-Trade Area and Its Impact on Agriculture (U.S.D.A. 2015), https://www.ers.usda.gov/webdocs/outlooks/40485/51265_wrs-15-01.pdf?v=7367.6 [https://perma.cc/HL7X-HPUT].

[81] Id.

[82] See FAS Directive 0202.19, supra note 36.

[83] Id.

[84] See The USMCA is Finally Donesupra note 62. 

[85] Id.

[86] Bob Bryan & Joseph Zeballos-Roig, Trump's New Major Trade Deal Looks a Lot Like NAFTA. Here are Key Differences Between Them., Mkt. Insider (Dec. 10, 2019, 3:43 PM), https://markets.businessinsider.com/news/stocks/us-canada-mexico-trade-deal-usmca-nafta-details-dairy-auto-dispute-resolution-2018-10-1027579947[https://perma.cc/JA5C-B4AR]

[87] United States–Mexico–Canada Trade Fact Sheet Agriculture: Market Access and Dairy Outcomes of the USMC Agreement, Off. U.S. Trade Representative, https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement/fact-sheets/market-access-and-dairy-outcomes [https://perma.cc/Z9DJ-4ACJ].

[88] USMCA, Am. Farm Bureau Fed’n, https://www.fb.org/issues/trade/usmca/ [https://perma.cc/A3XQ-X56Y].

[89] Anita Regmi, Cong. Res. Serv., R45661, Agricultural Provisions of the U.S.-Mexico-Canada Agreement 14 (Apr. 8, 2019), https://fas.org/sgp/crs/row/R45661.pdf[https://perma.cc/8F9A-28VY]

[90] Bradley Blackburn & Eric Noll, Made in America: A Brief History of U.S. Manufacturing, ABC News (Feb. 4, 2011, 6:04 PM), https://abcnews.go.com/Business/made-america-middle-class-built-manufacturing-jobs/story?id=12916118 [https://perma.cc/3ENV-YZVS].

[91] Id.

[92] See id.; U.S. Bureau of Labor Statistics, All Employees, Manufacturing, FRED Econ. Data, https://fred.stlouisfed.org/series/MANEMP [https://perma.cc/H2J3-8ALN]. 

[93] See U.S. Bureau of Labor Statistics, supra note 92.

[94] Eduardo Porter, Nafta May Have Saved Many Autoworkers’ Jobs, N.Y. Times (Mar. 29, 2016), https://www.nytimes.com/2016/03/30/business/economy/nafta-may-have-saved-many-autoworkers-jobs.html?auth=login-email&login=email [https://perma.cc/BD3M-EK72].

[95] Jeffry Bartash, China Really is to Blame for Millions of Lost U.S. Manufacturing Jobs, New Study Finds, MarketWatch (May 14, 2018, 1:30 PM), https://www.marketwatch.com/story/china-really-is-to-blame-for-millions-of-lost-us-manufacturing-jobs-new-study-finds-2018-05-14 [https://perma.cc/K2JH-PMAH].  

[96] Id.

[97] Villarreal IF11175supra note 20; M. Angeles Villarreal, Cong. Res. Serv., RL32934, U.S.-Mexico Economic Relations: Trends, Issues, and Implications (Jun. 25, 2020), https://fas.org/sgp/crs/row/RL32934.pdf [https://perma.cc/AE79-X4ZR] [hereinafter Villarreal RL32934].

[98] James Chen, Foreign Direct Investment (FDI), Investopedia (Feb. 24, 2020), https://www.investopedia.com/terms/f/fdi.asp [https://perma.cc/TL38-G59J].

[99] Id.

[100] Villarreal IF11175supra note 20.

[101] Villarreal RL32934supra note 97.

[102] See Linthicum, supra note 28.

[103] Id.

[104] Id.

[105] Jim Puzzanghera, These Three U.S. Companies Moved Jobs to Mexico. Here’s Why, L.A. Times (Dec. 19, 2016, 6:00 AM), https://www.latimes.com/business/la-fi-mexico-jobs-20161212-story.html [https://perma.cc/J9W2-83HC]

[106] Id. 

[107] Id.

[108] Id.

[109] Id.

[110] Id.

[111] See Villarreal & Fergusson, supra note 3, at 5. 

[112] See, e.g., Porter, supra note 94; NAFTA, 20 Years Later: Do the Benefits Outweigh the Costs?supra note 25.

[113] Trade in Goods with China, U.S. Census Bureau, https://www.census.gov/foreign-trade/balance/c5700.html [https://perma.cc/F6C6-WD6K]; Trade in Goods with Mexicosupra note 20.

[114] Margot Roosevelt, California Lost More Manufacturing Jobs to China Than Any Other State, Report Says, L.A. Times (Jan. 30, 2020, 7:30 AM), https://www.latimes.com/business/story/2020-01-30/la-fi-california-china-trade-job-loss [https://perma.cc/J8B2-TJS2].

[115] Robert E. Scott & Zane Mokhiber, Econ. Pol’y Inst., 156645, The China Toll Deepens, 2 (Oct. 23, 2018), https://files.epi.org/pdf/156645.pdf[https://perma.cc/BYR3-HBLS].

[116] Statista Research Department, Direct Investment Position of the United States in China From 2000-2019, Statista (Dec. 9, 2020), https://www.statista.com/statistics/188629/united-states-direct-investments-in-china-since-2000/ [https://perma.cc/V2PG-DGRW].

[117] NAFTA, 20 Years Later: Do the Benefits Outweigh the Costs?supra note 25.

[118] Bartash, supra note 95; Kimberly Amadeo, US Trade Deficit With China and Why It’s So High, Balance (Jan. 21, 2021), https://www.thebalance.com/u-s-china-trade-deficit-causes-effects-and-solutions-3306277#annual-trade-deficit [https://perma.cc/Z8V7-JD3M] [hereinafter US Trade Deficit With China]; see also Scott & Mokhiber, supranote 115, at 3, 5.

[119] E.g.US Trade Deficit With Chinasupra note 118; Robert E. Scott & Will Kimball, Econ. Pol’y Inst., Briefing Paper 385, China Trade, Outsourcing and Jobs, 21 (Dec. 11, 2014), https://files.epi.org/2014/bp385-china-trade-deficit.pdf [https://perma.cc/MW72-FKRL].

[120] US Trade Deficit With Chinasupra note 118; see also Scott & Kimball, supra note 119, at 23.

[121] M. Szmigiera, Manufacturing Labor Costs Per Hour: China, Vietnam, Mexico 2016-2020, Statista (Mar. 12, 2021), https://www.statista.com/statistics/744071/manufacturing-labor-costs-per-hour-china-vietnam-mexico/ [https://perma.cc/7QEH-RTU5].

[122] Statista Research Department, Hourly Earnings in U.S. Manufacturing 2006-2019, Statista (May 11, 2020), https://www.statista.com/statistics/187380/hourly-earnings-in-us-manufacturing-since-1965/ [https://perma.cc/RT9A-G8V6].

[123] Szmigiera, supra note 121 (average manufacturing wage in Vietnam in 2018).

[124] See Sophia Yan, ‘Made in China’ Isn’t So Cheap Anymore, and That Could Spell Headache for Beijing, CNBC (Feb. 27, 2017, 12:37 AM), https://www.cnbc.com/2017/02/27/chinese-wages-rise-made-in-china-isnt-so-cheap-anymore.html [https://perma.cc/LQ39-ANA5]see also Dmitriy Plekhanov, Is China’s Era of Cheap Labor Really Over?, Diplomat (Dec. 13, 2017), https://thediplomat.com/2017/12/is-chinas-era-of-cheap-labor-really-over/ [https://perma.cc/PB88-K9GU].

[125] See Floyd, supra note 15; Villarreal & Fergusson, supra note 3, at 16; Villarreal IF11175supra note 20.

[126] Villarreal & Fergusson, supra note 3, at 16–17.

[127] Id. at 32. 

[128] Porter, supra note 94.

[129] Linthicum, supra note 28.

[130] Porter, supra note 94.

[131] Alexia Fernández Campbell, Nearly 5 Million U.S. Jobs Depend on Trade With Mexico, Atlantic (Dec. 9, 2016), https://www.theatlantic.com/business/archive/2016/12/mexico-nafta-trade/510008/ [https://perma.cc/KR9H-GX6Q]

[132] Id.

[133] Porter, supra note 94.

[134] See id.

[135] Rebalancing Trade to Support Manufacturing, supra note 13.

[136] Sue Senger, Understanding the NAFTA Rules of Origin, Shipping Solutions (May 23, 2018), https://www.shippingsolutions.com/blog/nafta-rules-of-origin-part-1[https://perma.cc/PEW3-AU8N]

[137] Id.

[138] See Rebalancing Trade to Support Manufacturingsupra note 13.

[139] Kim Hill et al., Ctr.  Automotive Res., Contribution of the Automotive Industry to the Economies of All Fifty States and the United States (Apr. 2010), https://www.cargroup.org/publication/contribution-of-the-automotive-industry-to-the-economies-of-all-fifty-state-and-the-united-states/ [https://perma.cc/4JKX-9PDX].

[140] Kimberly Amadeo, Trump’s NAFTA Changes, Balance (Feb. 4, 2021), https://www.thebalance.com/donald-trump-nafta-4111368#6-changes-to-nafta-under-the-usmca[https://perma.cc/LRT9-E9BA][hereinafter Trump’s NAFTA Changes].

[141] Id.

[142] M. Angeles Villarreal et al., Cong. Res. Serv., IF11387, USMCA: Motor Vehicle Provisions and Issues (Dec. 19, 2019), https://crsreports.congress.gov/product/pdf/IF/IF11387 [https://perma.cc/8TYP-ATLX].

[143] See Finbarr Bermingham, U.S. and Chinese Companies Fear Trump’s Coming Trade War On Car Industry, Politico (Apr. 17, 2019, 5:19 AM), https://www.politico.com/story/2019/04/17/us-china-trade-car-industry-1358959 [https://perma.cc/GR7C-X9SC].

[144] Owen Stuart, How Will the Shift from NAFTA to USMCA Affect the Auto Industry?, Indus. Wk. (Oct. 12, 2018), https://www.industryweek.com/the-economy/article/22026500/how-will-the-shift-from-nafta-to-usmca-affect-the-auto-industry [https://perma.cc/8VHY-HRSK].

[145] E.g., Villarreal et al., supra note 142.

[146] Stuart, supra note 144. Automobile manufacturers have four main options for addressing this cost increase: (1) absorb the higher costs as lost profit, (2) renegotiate component supply contracts to pass the cost increase to suppliers, (3) change the product mix to make offerings less expensive, or (4) raise the price of finished goods and pass the increase on to consumers. Id. Automobile producers will likely implement a combination of all four options, resulting in some form of increase in the price of cars. Id.

[147] Gabrielle Jasinski, LevaData Survey: 63 Percent of Automotive Executives Believe Production Costs Will Increase Due to USMCA, Bus. Wire (Jan. 10, 2019, 9:00 AM), https://www.businesswire.com/news/home/20190110005101/en/ [https://perma.cc/CD7Q-9W4J]; Bridget McCrea, How Will USMCA Impact the Automotive Supply Chain?, Source Today (Feb. 13, 2019), https://www.sourcetoday.com/supply-chain/article/21867315/how-will-usmca-impact-the-automotive-supply-chain [https://perma.cc/3DJF-LXMB].

[148] Jasinski, supra note 147; McCrea, supra note 147.

[149] Jasinski, supra note 147; McCrea, supra note 147.

[150] McCrea, supra note 147.

[151] Id.

[152] See Trump’s NAFTA Changessupra note 140.

[153] See Rebalancing Trade to Support Manufacturingsupra note 13. Because cheap labor was the driving force behind the mass exodus of U.S. companies crossing the border, it may seem counterintuitive for Mexico to accept the USMCA wage and labor provisions. But under its first labor-friendly president in modern Mexican history, Mexico has passed several laws improving workers’ rights with the USMCA serving as part of an overarching goal to raise working standards. Lauren Kaori Gurley, Is Mexico on the Brink of a Labor Revolution?, New Republic (Apr. 5, 2019), https://newrepublic.com/article/153467/mexico-brink-labor-revolution [https://perma.cc/UTZ9-AFC9]. Further,Mexico presented little opposition to the USMCA because approximately 80% of its exports are sent to the U.S., and Mexico hopes to preserve positive relations with the U.S. and Canada after the uncertainty caused by President Trump’s threats to disrupt trade. Mary Beth Sheridan, Mexico Becomes First Country to Ratify New North American Trade Deal, Wash. Post (June 19, 2019, 8:42 PM), https://www.washingtonpost.com/world/the_americas/mexico-becomes-first-country-to-ratify-usmca-north-american-trade-deal/2019/06/19/500dd8c0-92b3-11e9-956a-88c291ab5c38_story.html [https://perma.cc/Y7EE-TB3Q].

[154] Trump’s NAFTA Changessupra note 140.

[155] The USMCA is Finally Donesupra note 62.

[156] David A. Gantz, Rice Univ.’s Baker Inst. Pub. Pol’y, The United States-Mexico-Canada Agreement: Tariffs, Customs, and Rules of Origin 3–4 (Feb. 21, 2019), https://www.bakerinstitute.org/media/files/files/6ee1ade5/bi-report-022119-mex-usmca.pdf [https://perma.cc/SB29-M7S7]

[157] The USMCA is Finally Donesupra note 62.

[158] See Villarreal et al., supra note 142. 

[159] Id.

[160] Automotive Industry: Employment, Earnings, and Hours, U.S. Bureau Lab. Stats., https://www.bls.gov/iag/tgs/iagauto.htm [https://perma.cc/TPM5-GG36].

[161] See Mike Rutherford, The Global Car Manufacturing Wage Gap: What Do Car Factory Workers Earn?, Auto Express (Mar. 22, 2017), https://www.autoexpress.co.uk/car-news/98986/the-global-car-manufacturing-wage-gap-what-do-car-factory-workers-earn [https://perma.cc/BQT5-3ZVH]

[162] Id.

[163] The U.S. average wage of $23.5 per hour minus the new $16 required wage is almost an $8 difference. Trump’s NAFTA Changessupra note 140; Automotive Industry: Employment, Earnings, and Hourssupra note 160.

[164] Shuji Nakayama & Ryo Asayama, Japan Auto Companies Triple Mexican Pay Rather Than Move to US, Nikkei Asia (June 28, 2020, 4:35 AM), https://asia.nikkei.com/Business/Automobiles/Japan-auto-companies-triple-Mexican-pay-rather-than-move-to-US [https://perma.cc/G224-G6GE]

[165] See Daniel J. Ikenson, Protectionist Love Child of the Labor Left and the Nationalist Right, Cato Inst. (Dec. 13, 2019, 8:02 AM), https://www.cato.org/blog/protectionist-love-child-labor-left-nationalist-right [https://perma.cc/BPJ9-SVQ2]. 

[166] Carrie Kahn, Will NAFTA 2.0 Really Boost Mexican Wages?, NPR (Oct. 17, 2018, 9:05 AM), https://www.npr.org/2018/10/17/657806248/will-nafta-2-0-really-boost-mexican-wages [https://perma.cc/CV8T-CUC5]

[167] Inu Manak & Simon Lester, Evaluating the New USMCA, Cato Inst. (Dec. 11, 2019, 4:47 PM), https://www.cato.org/blog/evaluating-new-usmca-0[https://perma.cc/B9CS-GKK9]

[168] Niraj Chokshi, Unions Skeptical Trump’s Trade Deal Will Bring Back Auto Jobs, N.Y. Times (Jan. 29, 2020), https://www.nytimes.com/2019/12/11/business/nafta-usmca-auto-jobs.html [https://perma.cc/YC89-CYKF]

[169] Brian Reinbold & Yi Wen, Changing Trade Relations May Affect U.S. Auto Exports in Long Run, Fed. Res. Bank St. Louis (Mar. 7, 2019), https://www.stlouisfed.org/publications/regional-economist/first-quarter-2019/changing-trade-relations-auto-exports [https://perma.cc/2ULJ-YS5V] (USMCA auto provisions “could lead to decreased global demand for cars manufactured in North America as they become less competitive in a global market” due to higher prices; “the USMCA is a solution searching for a problem in regard to auto trade”); U.S.-Mexico-Canada Trade Agreement: Likely Impact on the U.S. Economy and on Specific Industry Sectors, Inv. No. TPA 105-003, USITC Pub. 4889 (Apr. 2019) (Final) (USMCA likely to increase production costs in the United States, resulting in higher prices for automobiles and 140,000 fewer vehicles sold); Meet the New NAFTA, Ctr. for Automotive Res. (Oct. 16, 2018), https://www.cargroup.org/meet-the-new-nafta/ [https://perma.cc/NAE7-9CQH] (“Conforming to the USMCA rules and strategic responses to avoid the risk of additional tariffs will raise production costs for light vehicles and automotive parts, driving up consumer prices.”). 

[170] See Villarreal & Fergusson, supra note 3, at 32.

[171] See U.S. Bureau of Labor Statistics supra note 92; see supra notes 137–38 and the accompanying text.

Telling the Whole Truth Behind the Mic: Applying the Rules of Evidence to True Crime Podcasts

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Kami GriffithI

Introduction 

America has an obsession with true crime. Although tales of guilt and innocence have fascinated people for centuries, the genre is more accessible than ever with podcasts, audiobooks, and television channels that are entirely dedicated to crime and the courtroom.[2]

True crime podcasts rank among the top-downloaded podcasts on Apple’s iTunes.[3] The genre has caught the attention of not only amateur sleuths, but police officers and lawyers, as well.[4] For example, in 2018, a California Police Department created its own podcast to bring awareness to a case that detectives had trouble cracking.[5] Officers were able to track down the suspect within months of the podcast’s run.[6]

Another real-world example ended up in the Supreme Court.[7] Season two of In the Dark covered the story of Curtis Flowers, a man who was “tried six times for the same crime.”[8] The podcast brought considerable public attention to Flowers’ case.[9] Eventually, the Supreme Court overturned his conviction and all charges against Mr. Flowers have since been dropped.[10]

True crime podcasts generally adhere to two different structures. As one reporter put it: “Some reinvestigate cases with reams of original research or interviews. Others resemble Wikipedia-esque retellings.”[11] Some podcasts focus on a different case each episode, giving listeners the highlights from the investigation or court proceedings.[12] Other podcasts, like In the Dark, focus on a single case for an entire season, allowing the hosts to provide a deeper analysis of the facts and evidence.[13] However, it is this analysis of the “evidence” that can lead to problems. 

True crime is a genre that generates strong emotions. According to some social scientists, deaths and disappearances pique a natural curiosity surrounding tragedy.[14] Other studies suggest that consuming true crime “is one way we can feel prepared, and perhaps even comforted.”[15]Because of the heightened emotions at play, hosts and authors focus on telling the best story, but sometimes, “in the author’s quest to make the topic more interesting, facts may become lost or may be fabricated entirely.”[16] One popular true crime podcast, My Favorite Murder, even has a weekly segment entitled “Corrections Corner” during which the hosts take time to correct facts they got wrong on the previous episode.[17]

Not only do hosts take liberties with the facts of cases, it is often hard to recognize exactly where the facts are coming from. Although some shows attempt to acknowledge their sources, hosts can fall short. One podcast even removed several episodes from streaming platforms after the hosts faced plagiarism accusations.[18] When the focus is on telling the most sensational story, it can be tempting for podcasters to be lax on referencing sources, especially “when producers develop a following and feel they ‘constantly have to feed the beast.’”[19]   

Podcast hosts also give off a false air of trustworthiness. A listener might assume that because someone makes money producing episodes, they are an expert in the field. Podcast hosts also often refer to “authorities” or “officials” while talking about crimes without naming a particular authority.[20] The podcast host is attempting to back up what they are saying without needing to be held accountable by a specific member of law enforcement.

Another issue regarding facts and evidence is that podcast hosts can say whatever they want without many repercussions. Unlike prosecutors, podcasters are not subject to any limitations on how they present evidence.[21] Sometimes, podcasts present a mountain of “evidence” and then ask why investigators did not catch the right suspect.[22] However, much of the “evidence” presented by the host would not be admissible in court.[23]

Not all podcasts are up front about misinformation, so listeners assume that they are being exposed to the entire picture, but listeners might not be aware of the limitations placed on police officers and attorneys. This can be dangerous: “A major issue with the media is that ‘coverage of crime and punishment is notoriously inaccurate and . . . biased toward sensationalized accounts.’”[24]

In this Note I argue that true crime podcasts have great influence on how the public views the criminal justice system. I further argue that podcast hosts need to be aware that there is a difference between information that can point to guilt and information that can be presented to a trier of fact. In Part I of this Note I will explain theories behind the importance of the Federal Rules of Evidence. In the second section Part II, I will apply the Federal Rules of Evidence to popular true crime podcast episodes. I will focus on three different rules that are commonly disregarded by podcast hosts. First, I will apply the propensity limitations. Second, I will focus on the rule regarding opinion testimony by lay witnesses. Finally, I will discuss the general bar against hearsay and how information can be admitted through one of the various exceptions. Part III of this Note will focus on how podcasts can help further criminal law understanding among the general public and in the legal field. I will argue that hosts have an ethical responsibility to ensure that their audiences are aware of the evidentiary discrepancies.

I.        The Reasons for the Rules of Evidence

Rules of evidence are essential to the workings of the criminal justice system. The necessity is seen across jurisdictions, regardless of which version of the rules is in place. Although the necessity of uniformity is a general concept, scholars have reached different conclusions on the exact reasoning of the rules.[25] On one hand, the rules are seen as a mechanism to bypass confusing or irrelevant information and get the jury to the truth.[26] However, some scholars believe evidentiary rules are actually meant to promote public acceptance of jury decisions.[27]

The public acceptance theory depends on the particular evidence and rule in question. For example, Charles Nesson argues that hearsay rules are meant to promote confidence in juries.[28]  Nesson says that hearsay rules “prevent jurors from basing a verdict on the statement of an out-of-court declarant who might later recant the statement and discredit the verdict.”[29] The rules allow the public to assume that juries are hearing only reliable information.[30]

Nesson’s theory on the function of evidence rules has been applied to the popular podcast Serial, which questions the validity of Adnan Sayed’s murder conviction.[31]  Paul Berman looks at Nesson’s differentiation between direct and circumstantial evidence.[32]  The case against Sayed was built on eyewitness testimony.[33] Berman says that based on Nesson’s logic, the public is more likely to accept the jury’s decision to convict, because the jury members are the ones who heard the testimony and decided that the witnesses were credible.[34] Berman argues that it is only after members of the public hear statements that would violate evidence rules that the credibility of witnesses is called into question, even though these out-of-court statements often lack credibility.[35]

The rules of evidence are not only meant to promote the finding of the truth, but also to allow the public to maintain confidence in the court system.[36] The functions are both practical and theoretical. Sometimes podcasts can undercut both.

II.       Rules Commonly Violated by Podcasts 

Podcasts, unlike trials, are forms of entertainment. Podcasting is a business that relies on download numbers and crowdsourcing websites to operate.[37] Therefore, the pressure is on to keep listenership up and make sure new audience members are contributing to advertising revenue. Because of this, legality takes a backseat to good storytelling. In this section, I will elaborate on some of the most common Federal Rules of Evidence that are broken in the name of narrative: the bar against using character evidence to prove propensity, the bar on lay persons offering expert opinions, and the general bar on hearsay. 

A.      Being a Bad Person Doesn’t Make You Guilty

The premise of Rule 404 is simple: having questionable character does not necessarily make it more likely that you are a criminal.[38] Rule 404 says that evidence of a person’s character cannot be used to “prove that on a particular occasion the person acted in accordance with the character or trait.”[39] There are exceptions to the rule, most notably in 404(b).[40] Under Rule 404(b), evidence of crimes or other prior acts cannot be used as character evidence to prove someone committed a crime.[41] However, such evidence is admissible if it is evidence of motive, knowledge, or absence of mistake.[42] In order to determine if prior acts are admissible, courts generally balance the probative value of the information with the prejudicial impact.[43] Even relevant information should be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice.”[44]

The issue in the podcasting world is that no balancing is ever done. Because background information is important to effective storytelling, prior acts and crimes of suspects are often included in a case narrative. However, if you follow the logic of the rules, this background information, that can provide a holistic view of the suspect, would not be helpful in a court of law, unless it fits into one of the exceptions outlined in Rule 404(b)(2). Although it does provide listeners with a more complete view of the suspect, this practice does not explain anything about a crime, unless it encompasses one of the exceptions outlined in Rule 404(b)(2).

In A Killing on the Cape, an ABC podcast about the case of Christa Worthington, the intricacies of Rule 404(b) are exemplified.[45] Worthington was murdered ion Cape Cod in 2002.[46] Although a man is currently serving three life sentences for the crime, questions about his guilt remain.[47]One of the other suspects in the case is Elizabeth Porter, the girlfriend of Christa Worthington’s father.[48] During the podcast, the ABC contributor brings up Porter’s history with prostitution and heroin use.[49] If this podcast was subject to the Federal Rules of Evidence Rule 404(a) general bar against character evidence to prove propensity, this information about Porter would not be admissible.[50]

However, the podcast host goes on to mention that Christa Worthington was “quite upset” about the relationship because of Porter’s past, a fact that could possibly trigger a Rule 404(b) exception.[51] Because of Porter’s history, Christa Worthington did not want her to date her father, giving Porter a reason to want to get rid of Christa.[52] Proving motive is one of the exceptions listed under Rule 404(b).[53] A judge could find that the probative value of this information would outweigh the prejudicial impact.[54] The purpose in admitting the evidence here would not be to say that Porter was more likely to commit the crime because she had a history of drug abuse, but that she was more likely to commit the crime because of how her drug abuse influenced her relationship with the victim . 

Not all podcasts contain information that follows the relationship between sections (a) and (b) of Rule 404. Oftentimes, hosts bring up information that would not be admissible at all under the propensity bar. Take for instance the My Favorite Murder episode covering serial killer Richard Chase.[55] One of the hosts began the episode by introducing Chase’s rough upbringing.[56] She talked about how Chase had issues with bed wetting, arson, and cruelty to animals when he was a child.[57] She mentioned that this is known as the “McDonald triad,” which is falsely believed to be a direct link between certain behaviors in children and violent tendencies once those children reach adulthood.[58] This theory has not been backed up by statistics, which the host quickly noted.[59] Since there is no scientific connection between these three actions and any of the exceptions outlined in Rule 404(b)(2), this evidence would not be admissible in court.[60]

B.      If You are Going to Act Like an Expert, Be One

In a case it does not matter how much evidence you have if a jury does not believe it. This is especially true for complicated forensic evidence.[61]Evidence involving scientific techniques can be extremely helpful for a jury.[62] However, misuse of that same evidence can lead to wrongful convictions, which in turn leads to a breakdown of the public acceptance of the criminal justice system.[63] Hiring the right expert to explain nuanced principles to a jury can make or break a case.[64]

The Federal Rules of Evidence account for the need of expert testimony in Rule 701. This rule says that if someone is not testifying as an expert then their opinion testimony must be limited to what the witness has perceived and information that would actually help the fact-finder.[65] Most importantly, opinions offered by a lay witness must “not be based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”[66] Therefore, the rule does not “distinguish between expert and lay witnesses, but rather between expert and lay testimony.”[67]  Essentially the difference is that people without a specialty can testify to things that come from “reasoning familiar in everyday life,” whereas expert testimony “results from a process of reasoning which can be mastered only by specialists in the field.”[68]

The issue with the podcasting platform is that hosts come from a variety of backgrounds. Although some podcasts are created by journalists, or those who work in law enforcement, many hosts are simply people who have a true crime fascination.[69] Because podcast hosts are often the people presenting the information, they need to be mindful about how they frame complicated topics such as forensics. Unfortunately, not all podcasts frame the intricacies of these sciences as they should.

One example is the Wine and Crime podcast’s episode on blood spatter analysis.[70] During the first segment of the episode, one of the hosts attempts to go over the basics for blood spatter analysis.[71] She mentions the different types of blood stains and how they are made.[72] Later in the episode the hosts touch on how blood spatter analysis impacted specific cases.[73] Because the hosts do not have any formal training in blood spatter analysis,[74] a listener must trust that the hosts are relying on the right information. However, the podcast does mention how many different areas of study must be mastered to be considered an expert in blood spatter analysis.[75] Although this fact is discussed, the hosts do not make any connection between an expert’s opinion and the facts as they themselves are presenting them.[76]

A common way for podcasts to avoid the danger of misleading listeners is to go directly to the source and interview those who work in specific scientific or professional fields. My Favorite Murder, which is usually hosted by two amateur true crime observers, turned to a law enforcement officer for help in explaining the arrest in the infamous Golden State Killer case.[77] The case was open for nearly forty years until law enforcement agents used a genealogy website to trace D.N.A. from one of the crime scenes to the suspect, ultimately leading to an arrest.[78]

The hosts of My Favorite Murder knew that the familial gene technique was an investigative tool that their listeners were confused and concerned about, so they invited one of the investigators on the case to explain the tactic.[79] The investigator, Paul Holes, explained how law enforcement officials used D.N.A. to locate the familial branch of the suspect and how that information led to the arrest.[80] Holes also addressed the confidentiality concerns regarding the use of family members to aid in identifying suspects.[81] Because a person with specialized training on using D.N.A. evidence to perform a criminal investigation is the person explaining the procedure to the audience, the information is more credible. Not only that, but Holes is the sort of witness that would be able to testify to this information in court under Rule 702.[82]

It is important for podcast hosts to acknowledge that being extremely interested in a topic does not equate with being an expert in the field. Explaining highly convoluted, scientific areas without any formal training can lead to the spread of misinformation, which is why the limitations imposed by Rule 701 are so important.

C.      Hearsay is Rampant

Hearsay and its thirty-one exceptions, arguably the most complicated section within the Federal Rules of Evidence, is the most obvious issue with true crime podcasts. By nature, every single word uttered in a podcast could be categorized as hearsay.[83] The rule places a general bar on any out-of-court statements made “to prove the truth of the matter asserted.”[84]  Essentially, “the hearsay rule requires that people testify directly to what they saw or heard rather than repeating information from others.”[85] The general policy justification behind the rule is simple: the credibility of firsthand accounts are more credible than secondhand accounts.[86] Aside from interviews with victims or suspects, most of the information provided in podcasts are secondhand accounts. Even still, the rare interviews with eyewitnesses are considered hearsay because they are uttered outside of a court of law.[87]

Serial, the podcast that many people believe launched the nation’s true crime podcast obsession,[88] is ripe with hearsay issues:

The Serial podcast does not take place in court. It is therefore no surprise that hearsay is as rampant in the podcast as it is in the world outside the courtroom. Koenig asks almost everyone she interviews to talk about what they heard from other people. To give one example, Jay's friend Chris's sole contribution to the podcast is to talk about what Jay told him about how Adnan forced him to help bury Hae.[89]

Another example of hearsay evidence is in Episode 4 of Serial.[90] Sarah Koeing, the show’s host, plays a recording of a police interview with a witness named Jenn Pusateri.[91] Pusateri describes how Adnan Syed allegedly killed Hae Min Lee.[92] However, Pusateri herself did not witness any of this. She was simply telling a police officer what a man named Jay had told her.[93] The information coming from Pusateri could be potentially damning for a murder suspect, but Koeing had no way of knowing if it was true. 

       Podcasts, as discussed previously, are a form of entertainment. One of the many tactics used by hosts to make their episodes more gripping and engaging is the use of 911 calls.[94] These calls bring emotion, urgency, and authenticity to stories. However, these calls are technically statements made out of a courtroom and can be categorized as hearsay, especially if the calls are being used to prove a fact included in the substance of the phone conversation.[95]

       Sometimes podcasts will dedicate entire episodes to analyzing 911 calls.[96] For example, the podcast Cold Case Murder Mysteries played and analyzed a 911 call from a high-profile murder investigation in North Carolina.[97] The call was placed in the middle of the night by Michael Peterson, the main suspect in the murder of his wife, Kathleen.[98] In this episode, the disturbing call is played at the beginning of the episode.[99]The podcast host then analyzes the call as an indicator of Peterson’s guilt or innocence.[100] However, under the general hearsay ban, the call would not be admissible unless it met one of the explicit exceptions in Rule 803. 

Although 911 calls are technically out-of-court statements, there are a couple of exceptions that an attorney could use to admit these phone conversations into evidence. In the case of the Michael Peterson phone call, an attorney could argue that the conversation is admissible under the “excited utterance” exception.[101] In order for a statement to be classified as an “excited utterance” the statement must be about a startling event and “made while the declarant was under the stress of excitement that it caused.”[102] The 911 call made by Michael Peterson would likely fall into this exception. This, of course, depends on whether you believe his attorney’s timeline of events. If Peterson made the call directly after finding his wife lying at the foot of the stairs, it is likely he made the call while still under the “stress of excitement” of the discovery.[103] The urgency and emotion in Peterson’s voice also suggests that he was upset when he called the dispatcher.[104] Therefore, an attorney in this case would likely convince a judge to admit the 911 call. 

Emergency calls could also fall under the “present sense impressions” exception.[105] This exception to the hearsay bar applies to any “statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.”[106] Essentially, the exception admits a play-by-play of events as a person sees them. Peterson’s call, being used as another example, would likely not fall under this exception. Peterson’s entire defense strategy hinged on the fact that he did not directly perceive his wife falling down the stairs.[107] Peterson claimed he found her after she had already fallen.[108] Therefore, Peterson’s call, that would probably be admitted under Rule 803(2), would probably not be admitted under Rule 803(1). Though there are multiple ways to get 911 calls admitted, many podcast hosts treat these conversations as if they are automatically something a jury would hear.[109] This offers another example of how the Federal Rules of Evidence can be misconstrued.

The hearsay portion of the Federal Rules of Evidence are meant to promote the use of firsthand accounts to avoid credibility questions.[110]Podcasts are by nature secondhand accounts outside the courtroom. Therefore, all podcasts are hearsay. There are many instances where podcast hosts talk about hearsay issues as if they are automatically admissible, such as with emergency calls.[111] Ideally, podcast hosts would dissect the problems with hearsay evidence and demonstrate to listeners why the it is less credible..

III.     Podcasting Potential

It is true that sometimes podcast producers and hosts do not do enough to ensure that their audiences are learning about proper court procedures. However, there are instances where podcasts can be a great educational tool for the average listener. Some podcasts offer accurate portrayals of criminal procedure. One example is the podcast Bardstown.[112] This podcast is produced by two women; one is a journalist from Louisville, Kentucky.[113] The podcast includes narration and interviews centered around unsolved deaths in Bardstown, Kentucky.[114] One episode described the search of a farm property that was possibly connected to one of the five deaths in town.[115] The owner of the farm invoked her Fifth Amendment right against self-incrimination.[116] The podcast host then delved into the meaning of the Fifth Amendment and the implications it could have on the investigation.[117]

Other podcasts actually attack admissibility issues head-on. The podcast Shallow Graves covers a cold case surrounding a missing college student from Florida and a potential serial killer.[118] In the first episode of the podcast the host discussed an early crime committed by the main suspect.[119] In this particular investigation, the only evidence left at the scene was in the form of a toeprint.[120] The host discussed how the police were confident who the print belonged to, but that if they did not follow the correct procedure, the toeprint would not be admissible in court.[121] The host discussed the difference between having a suspect’s consent for a search and seeking a search warrant.[122] To further enlighten listeners on the subject, she interviewed an investigator on the case and asked him to discuss the factors he weighed when deciding whether consent or a search warrant should be sought.[123] Later on, the host explained how a motion to suppress works and the implications a suppression ruling can have on a trial.[124] Shallow Graves is another great example of how criminal investigations should go, how evidence is admitted at court, and the restraints placed on law enforcement officers as they gather pieces of evidence. It focuses on a specific evidentiary issue and breaks it down so that the listener can follow along.[125]

Not only are podcasts educating the general public about criminal investigations and court proceedings, but they can also inspire important conversations about socioeconomic issues. For example, Karen Kilgariff and Georgia Hardstark from My Favorite Murder made headlines after a listener complained to them about the use of the term “prostitute.”[126] During one of their episodes they apologized for using the term and acknowledged that it could be perceived as offensive.[127] The hosts clarified that they would refer to these women as “sex workers” instead of “prostitutes.”[128] Hardstark said, “we have a platform that we can announce these things and so we’re lucky and we should do it.”[129]

Podcasts can also educate law students or those in the legal field. A few scholars argued that the popularity of Serial provides an opportunity for educators to introduce new ideas in the legal classroom.[130] They believe that bingeable forms of entertainment, like podcasts, can put legal analysis “into twenty-first-century problems of language, narrative form, authenticity, and audiences.”[131] Serial and other podcasts like it can enhance a legal learning experience because they are all about doubt, wanting more, and ultimately not knowing the concrete answer.[132] Further, “[q]uestioning the reason for and function of desire for closure in law and its pursuit of justice, connected with its role as popular entertainment, enriches classroom discussions about the common law, jurisprudence, ethical advocacy, legal storytelling, and legal institutional competencies.”[133]

It is also important to note that the information and investigations being fueled by the podcasting world are having real-world implications inside the courtroom. As previously mentioned, the Supreme Court has overturned a conviction that was highlighted by the podcast In the Dark.[134]Although the podcast might not have been the sole reason for the Supreme Court’s opinion, information brought to light by the host did show the flaws in the original trial.[135] Serial is another example—new evidence uncovered in the podcast was actually read into evidence during a post-conviction relief hearing for Adnan Syed.[136] There is potential for podcasts to be effective not only in educating the public and future lawyers, but also inside the courtroom. 

Conclusion

The Federal Rules of Evidence are in place to make sure our courts run efficiently, get to the truth, and protect the public’s faith in the criminal justice system.[137] However, these rules are not at play in forms of mass media, like podcasts. It is true that thoughtful listeners and viewers can take into account the nuances of the criminal justice system without such guidance.[138] It is irresponsible for podcast hosts to assume that all listeners and viewers are going to be thoughtful during their own media consumption. This Note does not argue that podcasts need to stray away from true crime reporting or that podcasts should only by hosted by law enforcement officers. This Note does, however, argue that podcast hosts need to recognize the power they have in shaping the public’s view of criminal justice and how they often fall short. This is a great power with even greater responsibility. Podcasters need to be mindful about telling the truth, the whole truth, and nothing but the truth. 


I J.D. Candidate, University of Kentucky J. David Rosenberg College of Law (2021). 

[2] See David Costello, Un-Making a Murderer: New True Crime Sensationalism and the Criminal Justice System, 55 Am. Crim. L. Rev. Online 77, 78­–82 (2018).

[3] See Brad Hill, Apple’s Most-Downloaded Podcasts of 2018, Rain News (Dec. 6, 2018), https://rainnews.com/apples-most-downloaded-podcasts-of-2018/ [https://perma.cc/9HSV-MCWD].

[4] Paige Hymson, Play Next: What a True-Crime Podcast Meant for a Real-World Investigation, L.A. Times (Aug. 13, 2019, 6:00 AM),https://www.latimes.com/california/story/2019-08-12/play-next-this-police-department-made-a-podcast-to-find-a-fugitive-it-helped [https://perma.cc/SA3G-P8G5].

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Flowers v. Mississippi, 139 S. Ct. 2228, 2251 (2019); Nicholas Bogel-Burroughs, After 6 Murder Trials and Nearly 24 Years, Charges Dropped Against Curtis Flowers,N.Y. Times (Sept. 4, 2020), https://www.nytimes.com/2020/09/04/us/after-6-murder-trials-and-nearly-24-years-charges-dropped-against-curtis-flowers.html[https://perma.cc/8PFB-2L44].

[11] Derrick Bryson Taylor & Christine Hauser, Popular ‘Crime Junkie’ Podcast Removes Episodes After Plagiarism Accusation, N.Y. Times  (Aug. 22, 2019),         https://www.nytimes.com/2019/08/22/business/media/crime-junkie-podcast-plagiarism.html [https://perma.cc/SH2S-JP2Q].

[12] See, e.g., Crime Junkie, https://crimejunkiepodcast.com/ [https://perma.cc/EQV9-GZVZ]; Morbid: A True Crime Podcast, https://www.morbidpodcast.com/[https://perma.cc/3QA3-CFPB]; Generation Why Podcast, https://genwhypod.com/ [https://perma.cc/CX84-S2YV].

[13] APM Reports, https://features.apmreports.org/in-the-dark/season-two/ [https://perma.cc/95YD-GJEM]; see also Alissa Zhu, How an Investigative Podcast Helped Free Curtis Flowers, Clarion Ledger (Sept. 10, 2020, 5:00 AM), https://www.clarionledger.com/story/news/2020/09/10/how-investigative-podcast-in-dark-helped-free-curtis-flowers/5747054002/ [https://perma.cc/VWY4-4Y2S] (explaining the intense investigation into Flowers’ case).

[14] Sarah Watts, What One Researcher Discovered About America’s True Crime Obsession, Forbes (Feb. 28, 2019, 5:31 PM), https://www.forbes.com/sites/sarahwatts/2019/02/28/what-one-researcher-discovered-about-americas-true-crime-obsession/#180940c35e6e [https://perma.cc/K3UP-DA8T].

[15] Id.

[16] Costello, supra note 2, at 95.

[17] Jen Thompson, “My Favorite Murder”: Women Creating Community in Crime, Golin (Mar. 18, 2021) https://golin.com/2021/03/18/my-favorite-murder-women-creating-community-in-crime/            [https://perma.cc/RA72-EWKN].

[18] Taylor & Hauser, supra note 11.

[19] Id.

[20] Dean A. Strang, Beyond Guilt or Innocence: Larger Issues that Making a Murderer Invite Us to Consider, 49 Tex. Tech. L. Rev. 891, 898 (2017).

[21] Megan Boorsma, The Whole Truth: The Implications of America’s True Crime Obsession, 9 Elon L. Rev. 209, 223 (2017).

[22] Episode 154: DNA Dad, My Favorite Murder, at 1:04:48 (Jan. 3, 2019), https://myfavoritemurder.com/154-dna-dad/ [https://perma.cc/C8D8-VX8W] (discussing deathbed statements that indicated a suspect as well as previous statements from the victim before the murder that may not be admissible in court).

[23] Boorsma, supra note 21.

[24] Id. at 214 (quoting Justin T. Pickett et al., Public (Mis)Understanding of Crime Policy: The Effects of Criminal Justice Experience and Media Reliance, 26 Crim. Just. Pol’y Rev. 500, 501 (2015)).

[25] Charles Nesson, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts, 98 Harv. L. Rev. 1357, 1369 (1985).

[26] See id. at 1368–69. 

[27] Id.

[28] Id. at 1372. 

[29] Id. at 1373.

[30] Id.

[31] Paul Schiff Berman et al., A Law Faculty Listens to Serial, 48 Conn. L. Rev. 1593, 1633 (2016).

[32] Id. at 1634. 

[33] Id.

[34] Id.

[35] See id. at 1635.

[36] Nesson, supra note 25, at 1368.

[37] Todd Spangler, Spotify Launches Podcast Streaming Ad Insertion and Measurement, Variety (Jan. 8, 2020, 8:00 AM), https://variety.com/2020/digital/news/spotify-podcast-dynamic-streaming-ad-insertion-measurement-1203459830/ [https://perma.cc/8T6N-9BZH]; Roger Kay, Crowdsourcing Drives Podcast Quality, Forbes (Jan. 13, 2014, 10:19 AM), https://www.forbes.com/sites/rogerkay/2014/01/13/crowdsourcing-drives-podcast-quality/?sh=396b4003473d [https://perma.cc/62GV-DDSY].

[38] See Fed. R. Evid. 404.

[39] Fed. R. Evid. 404(a)(1).

[40] Fed. R. Evid. 404(b).

[41] Id.

[42] Fed. R. Evid. 404(b)(2).

[43] United States v. Lattner, 385 F.3d 947, 955 (6th Cir. 2004) (establishing a three-part test for Rule 404(b) evidence that looks at the likelihood the prior act happened, whether the evidence goes to one of the exceptions outlined in Rule 404(b)(2), and how the probative value of the evidence related to prejudicial impact).

[44] Huddleston v. United States, 485 U.S. 681, 687 (1988) (quoting Fed. R. Evid. 403).

[45] See generally David Sloan et al., A Killing on the Cape, ABC, https://abcnews.go.com/2020/deepdive/a-killing-on-the-cape-50254778 [https://perma.cc/L849-5YC7] (discussing inadmissible character evidence of a suspect).

[46] Id.

[47] See id.

[48] A Killing on the Cape: More Leads, More Dead Ends, ABC News, at 22:00 (Nov. 7, 2017), https://www.stitcher.com/podcast/abc-news/a-killing-on-the-cape/e/52234591 [https://perma.cc/649U-8FZB].

[49] Id. at 22:40.

[50] Fed. R. Evid. 404(a)(1).

[51] A Killing on the Cape: More Leads, More Dead Endssupra note 48, at 22:30.

[52] Id. at 26:50.

[53] Fed. R. Evid. 404(b).

[54] Fed. R. Evid. 403. 

[55] Episode 10: Murderous TENdencies, My Favorite Murder, at 48:00 (Apr. 1, 2016), https://www.stitcher.com/show/my-favorite-murder-with-karen-kilgariff-and-georgia-hardstark/episode/10-murderous-tendencies-200174474 [https://perma.cc/3AQ3-NET8].

[56] Id.

[57] Id.

[58] Id. at 48:20.

[59] Id.; Karen Franklin, Homicidal Triad: Predictor of Violence or Urban Myth?, Psychol. Today (May 2, 2012), https://www.psychologytoday.com/us/blog/witness/201205/homicidal-triad-predictor-violence-or-urban-myth [https://perma.cc/2FNR-YZDZ]

[60] Fed. R. Evid. 404(b)(2) (including exceptions such as “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident”).

[61] See Kimberly Schweitzer & Narina Nunez, What Evidence Matters to Jurors? The Prevalence and Importance of Different Homicide Trial Evidence to Mock Jurors, 25 Psychiatry, Psychol. & L. 437, 444 (2018).

[62] Id.

[63] Berman et al., supra note 31, at 1639 (arguing that forensic evidence can lead to unwanted results if not broken down in an acceptable way).

[64] See Rabia Chaudry, Undiscovered: Five Legal Lessons from the Case of Adnan Syed, 48 Tex. Tech. L. Rev. 363, 370–71 (2016) (arguing that the case discussed in the Serial podcast could have had a different outcome with the addition of even just one expert).

[65] Fed. R. Evid. 701(a), (b).

[66] Fed. R. Evid. 701(c).

[67] Fed. R. Evid. 701 (advisory committee’s note on 2000 amendments).

[68] State v. Brown, 836 S.W.2d 530, 549 (Tenn. 1992) (citation omitted). 

[69] Two of the most-downloaded true crime podcasts are hosted by a pair of women who are interested in true crime but have no formal training in law or law enforcement.See About My Favorite Murder, My Favorite Murder, https://myfavoritemurder.com/about [https://perma.cc/9TTE-VZ2S]About Us, Crime Junkie, https://crimejunkiepodcast.com/about-us/ [https://perma.cc/UE93-J383].

[70] Ep10: Blood Spatter, Wine & Crime Podcast (Apr. 5, 2017), https://wineandcrimepodcast.com/show_episodes/ep10-blood-spatter/ [https://perma.cc/N56Z-E5KV].

[71] Id. at 10:30. 

[72] Id. at 10:10.

[73] Id. at 1:07:00.

[74] About Wine & Crime, Wine and Crime Podcast, https://wineandcrimepodcast.com/about/ [https://perma.cc/43G8-RW42].

[75] Ep10: Blood Spattersupra note 70, at 37:50.

[76] See id.

[77] MFM Show, My Favorite Murder – 122 – Surprise! It’s Paul Holes, YouTube (May 24, 2018), https://www.youtube.com/watch?v=55omfgKDvTc [https://perma.cc/N8J7-M472]. 

[78] Laurel Wamsley, After Arrest of Suspected Golden State Killer, Details of His Life Emerge, NPR (Apr. 26, 2018, 3:51 PM), https://www.npr.org/sections/thetwo-way/2018/04/26/606060349/after-arrest-of-suspected-golden-state-killer-details-of-his-life-emerge [https://perma.cc/XHV3-W5EZ].

[79] See MFM Show, supra note 77, at 55:30.

[80] Id.

[81] Id.

[82] Fed. R. Evid. 702 (listing acceptable expert witnesses as people with “specialized knowledge” and opinions based “on sufficient facts or data” rooted in “reliable principles and methods”).

[83] Fed. R. Evid. 801(c)(1).

[84] Fed. R. Evid. 801(c).

[85] Berman et al., supra note 31, at 1635.

[86] Deborah Jones Merritt & Ric Simmons, Learning Evidence: From the Federal Rules to the Courtroom 444 (4th ed. 2018).

[87] See Fed. R. Evid. 801(c).

[88] See Tony Jeff, Crowdsourcing Justice, 35 Miss. C.L. Rev. 365, 366 (2017).

[89] Berman et al., supra note 31, at 1635.

[90] See Episode 4: Inconsistencies, Serial, at 7:47 (2014), https://serialpodcast.org/season-one/4/inconsistencies [https://perma.cc/VCE8-4DBN].

[91] Id.

[92] Id.

[93] Id.

[94] See, e.g.911 Calls Podcast with The Operator, 11:59 Media, https://www.1159media.com/911-calls [https://perma.cc/5K6K-YWD9] (dedicating an entire podcast to analyzing 911 calls).

[95] See Fed. R. Evid. 801(c).

[96] Episode 141: Analyzing the 911 Calls – The Staircase, Stitcher (Aug. 29, 2018), https://www.stitcher.com/podcast/wondery/real-crime-profile/e/55998180?autoplay=true [https://perma.cc/SJ87-F8DF].

[97] The Staircase Murder – E004, Cold Case Murder Mysteries, at 0:01, https://www.coldcasemurdermysteries.com/e004-the-staircase-murder [https://perma.cc/SZ4E-QUJ8].

[98] Id.

[99] Id.

[100] Id.

[101] Fed. R. Evid. 803(2).

[102] Id.

[103] Id.

[104] See The Staircase Murder – E004supra note 97.

[105] Fed. R. Evid. 803(1).

[106] Id.

[107]  Rebecca Reisner, Michael Peterson: An Update, Forensic Files Now, https://forensicfilesnow.com/index.php/2019/09/26/michael-peterson-an-update/comment-page-1/ [https://perma.cc/W4G9-KV8G].

[108] Id.

[109] See The Staircase Murder – E004supra at note 97 (discussing a 911 call and a subsequent trial without explaining the relationship between the two).

[110] Note, The Theoretical Foundation of the Hearsay Rules, 93 Harv. L. Rev. 1786, 1788 (1980).  

[111] See Episode 4: Inconsistenciessupra note 90, at 1:00.

[112] Bardstown, Vault Studios, https://www.bardstownpodcast.com  [https://perma.cc/C936-APVT].

[113] Jackelyn Jorgensen et al., The making of the Bardstown podcast, First Coast News (Aug. 27, 2019, 6:50 PM), https://www.firstcoastnews.com/article/news/local/the-making-of-the-bardstown-podcast/417-b16b8c85-0cfd-4d72-b6be-49fd3dcc59ad#:~:text=Shay%20McAlister%20is%20an%20investigative,the%20new%20podcast%20'Bardstown [https://perma.cc/ZCV9-ZBKV].

[114] Id.

[115] Bardstown: Prime Suspectsupra note 112, at 13:00. 

[116] Id.

[117] See id.

[118] See Linda, Shallow Graves (Feb. 20, 2020), https://podcasts.apple.com/us/podcast/linda/id1497630439?i=1000466281242 [https://perma.cc/6ZDQ-PBNS].

[119] Id. at 20:00.

[120] Id.

[121] Id. at 25:00.

[122] Id.

[123] Id.

[124] Id. at 36:36.

[125] Id.

[126] Becky Hughes, My Favorite Murder Podcasters Karen Kilgariff and Georgia Hardstark on Their Famous Friendship, Love of True Crime and More, Parade (May 28, 2019, 5:00 AM), https://parade.com/884730/beckyhughes/my-favorite-murder-podcasters-karen-kilgariff-and-georgia-hardstark-on-their-famous-friendship-love-of-true-crime-and-more [https://perma.cc/7B5Z-7BNS].

[127] Episode 12: Our Bodies, Our Twelves, My Favorite Murder, at 54:00, https://www.iheart.com/podcast/268-my-favorite-murder-w-27911429/episode/12-our-bodies-our-twelves-28977250/ [https://perma.cc/SJ75-WMYX].

[128] Id. at 55:47.

[129] Id. at 56:50.

[130] Zahr K. Said & Jessica Silbey, Narrative Topoi in the Digital Age, 68 J. Legal Educ. 103, 104, 107 (2018).

[131] Id. at 104.

[132] Id. at 106.

[133] Id. at 107.

[134] Dan Mangan, Curtis Flowers—Black Man Tried Six Times for Same Murders—Released on Bail After Supreme Court Reversed Case Detailed in Podcast, CNBC (Dec. 16, 2019, 5:13 PM), https://www.cnbc.com/2019/12/16/bail-set-for-curtis-flowers-in-murder-case-overturned-by-supreme-court.html [https://perma.cc/9AKF-7VRX].

[135] Id.

[136] Jeff, supra note 88 at 365–66.

[137] Nesson, supra note 25.

[138] See Strang, supra note 20, at 891.

A Ward of the State: The First Amendment as Protecting the Best Interest of the Child in Custody Disputes

Download a PDF Below:

Ellen C. Ray[1] 

Introduction

One of the most challenging First Amendment questions facing the courts is whether a public employee’s speech should be classified as a public concern or a private interest.[2] This distinction affects whether the speech will be treated the same as speech from ordinary citizens working in the private sector and be protected by the First Amendment, or whether the public employee will be subject to retaliation and possible termination by the public employer for their speech.[3] While the courts have dispelled the idea that public employees may be subjected to exorbitant restraints by the state due to their employment status, today the question has shifted to finding the appropriate balance between protecting both the right of the employer to control its public message and the right of the employee as a citizen to speak one’s mind, as granted by the Constitution.[4]

The law on public employee freedom of speech has expanded into a five-step analysis, often referred to as the Pickering/Garcetti test (hereinafter Pickering test), adapted from leading First Amendment public employee Supreme Court cases, which is described as follows:

(1) whether the speech was made pursuant to an employee's official duties; (2) whether the speech was on a matter of public concern; (3) whether the government's interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff's free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct.[5]

Steps one through three are classified as issues of law to be analyzed and resolved by the court, while steps four and five are left to the trier of fact, typically a jury.[6] This step-by-step analysis allows courts a clear path to rule on freedom of speech issues for public employees, but the ambiguity of some of these categories leaves the court with ample discretion to determine what exactly is within the scope of official duties or on a matter of public concern. Since there is ambiguity within these categories, courts have rendered opposing decisions on what speech qualifies for protection for decades. 

In 2014, the Supreme Court of the United States decided in Lane v. Franks that a public employee giving truthful, sworn testimony outside the scope of his or her employment is protected by the First Amendment.[7] Edward Lane was hired by Central Alabama Community College (hereinafter CACC) to be the Director of Community Intensive Training for Youth.[8] Lane fired Suzanne Schmitz for lack of appropriate reporting, which he discovered by conducting an audit, but then Lane was fired by the President of CACC, Steve Franks, for his testimony in the Schmitz trial.[9] Lane brought suit against Franks, arguing that he was improperly retaliated against for testifying in the Schmitz trial for mail fraud and improper use of federal funds.[10] The Court held that Lane had a right to First Amendment protection for his truthful testimony, prompted by subpoena, because “[s]worn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth.”[11] From the Lane ruling it appeared as though a point of clarity had been reached for public employees testifying in court, a small degree of clarification for the complex Pickering test. 

However, only a few years later, in the 2019 case of  Butler v. Board of County Commissioners for San Miguel County, the Tenth Circuit held that the truthful, sworn testimony of a public employee in a child custody hearing was not protected by the First Amendment.[12] This case centered on the testimony of Jerud Butler, a public employee, working as a newly-appointed supervisor in the Road and Bridge Department for San Miguel County.[13] Butler testified on behalf of his sister-in-law in a custody dispute for her children and was predominately asked to relay information about his working hours and job requirements since the child’s father also worked for the Department.[14] Two weeks later, Butler was demoted and reprimanded for his testimony in the proceeding, and he subsequently brought suit against his employer for violation of his First Amendment rights.[15] In Butler, the Tenth Circuit ruled that the issue of child custody is a private, domestic interest, “not of general interest to the community as a whole,” and, thus, is not subject to First Amendment protections because it fails the “public concern” prong.[16] Not only is this holding in direct conflict with Lane, it also contradicts the long-held family law standard that it is the duty of the state to consider the best interest of the child as a public concern in child custody hearings.[17]

The law presumes parents will make decisions in the best interests of their children because “parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.”[18] Under the Fourteenth Amendment’s Due Process Clause, parents have a constitutionally protected right to “the custody, care, and nurtur[ing] of the child,” to which the state cannot interfere “without some showing of unfitness.”[19] The best interest of the child is a burden-shifting responsibility that requires the state to provide protection for minors when the fitness of the parents is called into question.[20] The Butler holding is contrary to the standard set forth in family law, which promotes the best interest of the child as a state protected interest through the doctrine of parens patriae—the idea that the state steps in as protector to prevent “injury to those who cannot protect themselves.”[21] The holding in Lane is more consistent with the promotion of the best interest of the child standard. Testimony in a custody dispute is a public concern that should per se qualify under the second prong of the Pickering test because the state has a duty to take an active role in protecting minors under the standards of parens patriae and the best interest of the child. 

Part I of this Note will offer a review of First Amendment rights for public employees, looking at the development of the Pickering test. Part II will discuss the importance of the best interest of the child standard in custody disputes and how it is used by courts today. Part III will analyze the holding in Butler against that of Lane and Part IV will argue that it is necessary to include public employee testimony in child custody disputes as a per se public concern under the Pickering test, due to the best interest of the child standard. 

I. History of Public Employee Protections and the First Amendment

The First Amendment to the United States Constitution protects, among other freedoms, the freedom of speech for people within the United States.[22] This protection prohibits the government from punishing, altering, or restricting verbal or written statements made by persons in the United States, in order to promote trust and self-governance among the people.[23] Through the Due Process Clause of the Fourteenth Amendment, these First Amendment protections from government regulation of speech are applied to the states.[24]

However, because public employees are “in a special relationship to the government,” their speech is not protected under the First Amendment when it is considered to be detrimental to the public employer, as determined by the test first established in the 1968 Supreme Court case, Pickering v.Board of Education.[25]

Pickering held that public employees do not give up First Amendment protection by accepting a job with the government or another public institution.[26] In this case, a public school teacher was fired for publishing a letter in response to recent actions taken by the School Board related to funding.[27] The school alleged that the teacher’s remarks were both false and damaging to the reputation of the school.[28] The Court held that Pickering’s letter was protected by the First Amendment because it represented a difference of opinion on a general public interest topic, taken up in the public sphere, and did not warrant his dismissal.[29] The Court emphasized the importance of a balancing test in this arena of free speech because the employer’s interest in limiting an employee’s “contribut[ion] to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.”[30] Furthermore, this case defined the public employee First Amendment protection exception as a fact-specific balancing test.[31] The Court held that teachers should be able to express opinions freely on the topics which they are the “most likely to have informed and definite opinions” on, and that the topic of school system funding was a “matter of legitimate public concern” for which “free and open debate is vital to informed decision-making.”[32] Pickering established itself as a foundational case for discerning the role of governmental protections for public employees’ speech. 

The next case that helped build First Amendment precedent in regard to public employees is Connick v. Meyers, which held that a state Assistant District Attorney’s termination for publishing a questionnaire related to office protocol after refusing to accept a transfer did not involve matters of public concern.[33] The Court set another standard of analyzing the content, form, and context of the public employee’s speech to determine whether it should be classified as a public concern.[34] It determined that the internal questionnaire meant for employees focused on internal opinion of internal action and did not seek the public’s opinion, nor attempt to show any wrongful action by any of the attorney’s superiors to the public.[35]Based on this analysis, the termination was not in violation of the attorney’s First Amendment right because the issue was a matter of private concern which can be subject to retaliation and, therefore, does not require analysis under the Pickering balancing test.[36] Connick will be further addressed later in this Note to determine if a child custody dispute and sworn testimony meet the requisite form, context, and content to be classified as interests of public concern. 

The final foundational case for First Amendment public employee protections is Garcetti v. Ceballos[37] The Court held that Ceballos was acting in his capacity as a calendar deputy when he wrote a memorandum regarding government misconduct in a particular case to his supervisor.[38]Thus, his speech was not protected by the First Amendment, and his internal punishments of reassignment and denial of promotion were appropriate.[39] This case takes a more detailed look at the first step in the analysis outlined in Butler: whether the employee is acting pursuant to his or her official duties.[40] Through the outlining of these cases, it is clear that public employee First Amendment protections are a fact-specific, case-by-case decision for courts, and because of the discrepancies in this form of analysis, they often lead to circuit splits. 

The three cases discussed above help to build a foundation for the tests applied in Butler and Lane. It appeared as though the Supreme Court had issued the final say in Lane in holding that the First Amendment protects the truthful, sworn testimony of a public employee, prompted by subpoena, and not acting in his or her capacity as an employee.[41] However, five years later, the Tenth Circuit held in Butler that this standard was not directly applicable to public employees testifying in child custody cases.[42] When looking at the elements discussed in Connick, the apparent per se rule created by Lane, that public employees’ sworn testimony is protected by the First Amendment, places too much emphasis on the form and context of the speech and not the content.[43] The Tenth Circuit ultimately ruled that while the form and context of Butler’s speech for his sister-in-law’s custody hearing met the public concern standard, the content was simply too personal and only “of great significance to the private parties involved in the proceeding,” and because the hearing related to an individual parent’s custody right to her own child, it was not a “political, social, or other concern of the larger community.”[44] This is where Butler and the precedent of family law do not coincide.  

II. History of the Best Interest of the Child and the State as Parens Patriae

The doctrine of parens patriae directly translates to “parent of the county,” and represents the idea that the state can step into a protector role when citizens, who have the initial right of protector status, fail to do so.[45] While historically the common-law doctrine applied to situations of mental incapacity, more recently it has been legislatively applied to states’ control of certain areas, including:[46] natural resources,[47] and, most significantly for this Note, the welfare of a child.[48]

The Supreme Court of the United States held that “[t]he State has an urgent interest in the welfare of the child . . . . As parens patriae, the State’s goal is to provide the child with a permanent home.”[49] Additionally, the Tenth Circuit has emphasized that “[s]tates have a parens patriae interest in preserving and promoting children’s welfare.”[50] Specifically in Colorado, the state of origin of the Butler case, the court recognized that the state, as parens patriae, has a continuing responsibility for the protection of children in its territory under § 19-1-104(1)(c) of the Colorado Children’s Code.[51] These jurisdiction-specific holdings demonstrate the state has a universally understood interest to protect children within its borders under the doctrine of parens patriae

During a child custody hearing, as occurred in Butler, the universally applied standard is known as the best interest of the child standard.[52] This standard is represented in section 402 of the Uniform Marriage and Divorce Act (hereinafter UMDA).[53] It was born out of a century of gender-based presumptions controlling custody decisions post-divorce.[54] First, children were considered property; therefore, custody favored fathers, as women could not own property.[55] This view then shifted to the since-abolished “tender years doctrine” in the early 1800s, which preferred maternal custody if the child was young.[56] Finally the courts arrived at a more gender neutral, child-centered approach in the mid-1800s, known as the best interest of the child doctrine.[57] As defined in the UMDA, the doctrine is comprised of five factors.[58] The court analyzes a custody decision based on: (1) the desires of parents, (2) the wishes of the child,  (3) the child’s interactions with each parent and other related parties, (4) the concerns related to the child’s home or school environment, and (5) the mental and physical well-being of all involved parties.[59]

While all of the above factors are significant in determining custody, for Butler, it is important to distinguish that there may be expert witnesses such as social workers, psychologists, and doctors who testify related to their expert knowledge in order for the court to determine custody.[60]However, Butler was a character witness who also happened to be a public employee.[61] He was not providing testimony because of his employment, but rather because of his personal connections to the parents and the insights he could offer about the father’s work.[62]

Butler worked for the Road and Bridge Department in San Miguel County, Colorado, alongside his sister-in-law’s ex-husband.[63] While on the stand, Butler was asked about the hours of operation for the Department and other operational questions because the child’s father also worked for the Road and Bridge Department.[64] In response to this testimony, his employer demoted him.[65] This employer retaliation is not in line with the protections afforded to public employees under the First Amendment and Lane v. Franks.[66]

Butler was in a unique position to offer knowledge as to the father’s work schedule for purposes of the custody arrangement, just as the teacher in Pickering had unique knowledge of the way money should be spent in schools.[67] As “members of a community most likely to have informed and definite opinions”[68] related to the issue at hand, both should feel equally safe to be able to speak freely on these important public issues—education and child custody—without fear of retaliatory dismissal due to the issue’s classification as a private concern.

The foundational case for the best interest standard is Troxel v. Granville, which limits the state’s ability to interfere with a parent’s rearing of their child due to the parent’s constitutionally guaranteed right to make decisions on behalf of the child, pursuant to the Fourteenth Amendment.[69] In Troxel, the Court improperly superseded the mother’s fundamental right to decide what is in the child’s best interest and granted the paternal grandparents visitation rights.[70] Therefore, unless the custody of the child is put into question, triggering an analysis by the court using the five-factors discussed above, the parents retain decision making power for the child.

Another often cited best interest case is McDermott v. Dougherty, which discusses more directly the best interest standard as applied to parental custody disputes.[71] The best interest standard is particularly important in custody disputes between parents, and is significant to the Butler case, because it shows the court’s need for accurate information from character witnesses in making custody determinations. While each parent may appear biased based on their personal interests, third parties—like Butler—who have a familial relationship with the parties, may be of particular use in the courts in determining the best interest of the child. 

Thus, the best interest of the child is a paramount legal standard in the U.S..[72] Arguably, one of the most useful pieces of evidence in a custody dispute is third-party testimony that puts the statements or actions of one parent in question. For example, in OCBSS v. Manuel, the court dismissed a mother’s petition after third-party testimony contradicted her own testimony by countering the mother’s statements related to financial stability and disputing the child’s happiness in the mother’s home.[73] Contrary to this, arguments have been made that the best interest standard is not in conformity with the fundamental right of parents to parent their children.[74] In states that lack a joint custody standard, the best interest determination may appear to grant the judge too much power in independently determining the best interest of the child in the role of parens patriae.[75] However, most states, including Colorado,[76] follow a joint custody standard,[77] where the best interest factors are a more productive and fairer analysis for the court to use.  

III. Butler’s Silence on the Best Interest Standard: Is this a Problem?

By connecting these two doctrines, parens patriae and the best interest of the child, the state’s role in child custody proceedings is clear: protect the child without overstepping the constitutional interests of the parent. The Butler majority opinion begins by citing to the first three steps of the Pickering/Garcetti test: public employee speech is protected only when that speech is “(1) made as a citizen (2) on a matter of public concern (3) if the employee’s right to speak outweighs the government’s interest as an employer in an efficient workplace.”[78] The case specifically deals with whether child custody cases should be classified as issues of public concern.[79]

The majority held that “[a]lthough Butler’s testimony involved a matter of great significance to the private parties involved in the proceeding, it did not relate to any matter of political, social or other concern of the larger community,” thus the testimony was not on a public concern.[80]However, based on the holdings in both Lane and Troxel, because this case arose from post-divorce proceedings, it is one in which the courts must intervene with a parent’s constitutional right to raise and make decisions for their children. Contrary to Troxel, where the mother was the sole surviving parent,[81] and therefore had the only say in parenting decisions, in Butler, the parents are in a custody dispute following their separation.[82] Because of this, the court should use the best interest of the child standard to determine what the best custody arrangement is for this situation.  

Butler argued that he was speaking on a matter of public concern because “the state’s general interest in child welfare and fair custody proceedings,” classifies a child custody hearing as such.[83] The Tenth Circuit disagreed, providing case-based examples of what would classify as public concern, including “evidence of corruption, impropriety, or other malfeasance within the government entity,” but not usually “internal personnel disputes and working conditions.”[84] In the Connick test, as discussed above, there are three main criteria for deciding if speech should be classified as relating to public concern: form, context, and content.[85] Here, too much emphasis is placed on the content of the speech, meaning the questions that Butler was asked while testifying in the child custody proceeding.[86]

When looking at the form and context of the speech, the court also rejects the significance of First Amendment protection for public employees testifying in child custody cases. The court reasons that because the community at large did not have an interest in the hours of operation of the Department or the sister-in-law’s character, the testimony was on a private concern and could be subject to retaliation because Butler spoke of something which was readily accessible to the public (namely the hours of operation).[87] While it is reasonable to argue that the information Butler provided in his testimony was likely readily accessible in another format to be presented to the court, this does not mean that it should have been against the employer’s interest for Butler to testify as he did. 

As Cynthia Estlund argues, the classifications of specific practices as being within public concern for purposes of the First Amendment under Connick is a limiting practice on what our society is told to value.[88] If a subject is not considered to be within the realm of public concern, then the possibility increases that it will no longer be viewed as a “legitimate subject[] of public discussion.”[89] If more courts refuse to classify child custody hearings as matters of public concern, the integrity and safety of the process of determining custody through the courts will be delegitimized and countless children disenfranchised.[90] Ultimately, the stringent classifications in the public concerns test, “discounts the importance, and undermines the claim to constitutional status, of speech grounded in the real, everyday experience of ordinary people.”[91]

Estlund further points out that the public concerns test, as it is presently applied, also prohibits “women in particular” from these public employee protections because women are often less able to “participate in public life” due to “pregnancy, childbirth and childrearing responsibilities.”[92] The limitations of the public concern test keep women from having the opportunity to participate in public discourse without fear of retaliation by public employers because the issues that are frequently expected to be at the forefront of their minds have not been classified as “public” enough to warrant free speech privileges. 

The dissent in Butler, written by Judge Lucero, advocates for the use of the best interest standard in this case.[93] Colorado declared that the placement of children was a matter of public concern through its statutes,[94] which should have provided a basis for an argument that the majority did not address. Furthermore, the dissent correctly points out that while custody “is partly personal in nature, it is at its root a societal and public issue.”[95] Before incorporating analysis of the best interest of the child, the dissent makes multiple astute arguments that Lane intended for the form and the context of testimony in a public court case to be enough to raise the speech to a realm of public concern.[96] Moreover, a connection is drawn between sentencing proceedings, which were held to invoke public concern in Bailey v. Indep. Sch. Dis. No. 69,[97] and child custody cases.[98] Both proceedings are paid for by the public, become public record, and are able to be viewed by the public.[99] The court is at the forefront of public discourse in America, and all proceedings before it should be viewed as relating to public concern. 

The dissent draws connections the majority failed to see. First, Colorado clearly supports and enforces the parens patriae doctrine, requiring the state to care for “children who cannot care for themselves.”[100] This protection is achieved when the court, again following Colorado’s instruction, “make[s] an independent examination of the best interest of the child in custody matters.”[101] The majority appears to ignore Colorado precedent which promotes custody disputes as related to the state’s public interest, and even more that child support has a public function as well.[102] The dissent makes the same conclusion as this Note: Lane creates the Supreme Court precedent for testimony to be classified as public concern, Colorado further promotes child custody and welfare as a public concern, and nowhere is child custody classified as a private interest.[103] Butler’s testimony is quintessential public concern for child custody cases and yet he is punished for acting in conformity with two widely accepted and applied legal standards.  

IV. What is the Solution? 

The Tenth Circuit was incorrect to rule against Butler and the best interest standard. While the court did not have to go so far as to say that there is a per se First Amendment protection for public employees testifying in court, the court should have recognized the significance of child welfare in Colorado and the public concern given to this topic. The United States Supreme Court should take up this case on appeal in order to more clearly classify all proceedings in a public courtroom as related to public concern, especially those dealing with the welfare of children. 

When Lane was decided, there was a massive circuit split on what to do about public employee testimony in court cases, not just in child custody decisions.[104] The nuances of the Garcetti and Pickering tests were interpreted differently by the circuits, each placing emphasis on different aspects.[105] The Supreme Court needs to create a streamlined approach, which more clearly includes room for child custody proceedings as a public concern. While the Lane decision created a clearer, more standardized approach to dealing with public employee testimony, more could have been said. As Sara Robertson argues, altering the standard to first determine “whether the speech is on a matter of public concern as the sole threshold question,” before applying the Pickering test would better balance all parties interests.[106] If this standard were adopted, then the Tenth Circuit would have had to first consider that Butler was testifying in a child custody case, which under Colorado law is a public concern.[107] With such an approach implemented, the court would then be able to tell the employer that because Butler was testifying in a case which was related to public concern, namely the welfare of a child, his speech was protected from employer retaliation. 

An alternative, which is slightly counter-intuitive, requires restraint on the state’s parens patriae power to remove child custody disputes from the courts and resolve them instead through arbitration.[108] According to Aaron Zurek, the current system in many states does not allow for “arbitration of custody disputes or subject[s] the award to de novo judicial review.”[109] This allows for significant control of child custody cases in the court system and in turn makes public employees vulnerable to retaliation for their testimony in such cases. Arbitration of child custody decisions also promotes the best interest of the child by “allowing parents to choose the values that shall govern the decisionmaker’s resolution of their custody dispute.”[110] Allowing parents to arbitrate their child custody decisions is a practical alternative to relieve stress on the court system and honor the best interest of the child standard. 

Conclusion

One’s position as a public employee should not hinder nor suppress the truth when something as significant as a child’s well-being and safety is on the line. The Tenth Circuit, in Butler, threatened this idea by holding that public employee testimony is not related to a public concern in child custody cases. With clear evidence from Colorado, the state of origin of the case, that the state has an interest in protecting the welfare of children coupled with a storied history of traditions of parens patriae and the best interest of the child standard across the nation, the Tenth Circuit ignored precedent and deemed child custody to be a domestic, private matter. 

Private negotiations and mediations are not in the realm of public concern; divorce and custody battles that happen outside the courtroom are not public concern. But when the welfare of a child is put into the hands of the court, a public institution, the state must protect the interests of the child. Courts have taken advantage of their unique role in child custody proceedings, too often usurping the parents’ desires in the name of the best interest standard. The ability of parents to provide testimony of witnesses, whether they be employed publicly or privately, is a right that no court should try to abridge. The sanctity, procedure, and classification of the court as dealing with matters of public concern should be appreciated and adhered to across all disciplines of the law, even when the case relates to matters of the family. 

[I] Notes Editor, Kentucky Law Journal, Volume 109; J.D. Candidate, University of Kentucky J. David Rosenberg College of Law (2021); B.A. English, Centre College (2018).

[2] See Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968).

[3] Id.

[4] Id. at 568.

[5] Butler v. Bd. of Cty. Comm’rs., 920 F.3d 651, 655 (10th Cir. 2019) (internal citations omitted). 

[6] Id.

[7] Lane v. Franks, 573 U.S. 228, 231 (2014). 

[8] Id. at 231–32.

[9] Id. at 232–33. 

[10] Id. at 234.

[11] Id. at 238.

[12] Butler v. Bd. of Cty. Comm’rs., 920 F.3d 651, 653–54 (10th Cir. 2019).

[13] Id. at 653. 

[14] Id. at 654.

[15] Id.

[16] Id. at 663.

[17] Id. at 667 (Lucero, J., dissenting). 

[18] Parham v. J.R., 442 U.S. 584, 602 (1979).

[19] Quilloin v. Walcott, 434 U.S. 246, 255 (1978).

[20] See id. 

[21] Alfred L. Snapp & Son, Inc., v. Puerto Rico, 458 U.S. 592, 600 (1982); see also McDermott v. Dougherty, 869 A.2d 751, 803 (Md. 2005) (discussing the role of the judge to consider a father’s fitness when making a custody ruling under the doctrine of parens patriae).

[22] U.S. Const. amend. I.

[23] See Geoffrey R. Stone & Eugene Volokh, Freedom of Speech and the Press, Nat’l Const. Ctr., https://constitutioncenter.org/interactive-constitution/interpretation/amendment-i/interps/266 [https://perma.cc/6F8F-DRED] (last visited Feb. 22, 2021). 

[24] U.S. Const. amend. XIV, §1.

[25] Stone & Volokh, supra note 23; Pickering v. Bd. of Educ., 391 U.S. 563, 565 (1968).

[26] Pickering, 391 U.S. at 573. 

[27] Id. at 566–67.

[28] Id.  

[29] Id. at 571–73.

[30] Id. at 573. 

[31] Id. at 568.

[32] Id. at 571–72. 

[33] Connick v. Meyers, 461 U.S. 138, 148 (1983).

[34] Id. at 147–48. 

[35] Id. at 148. 

[36] Id. at 154 (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)) (throughout the Connick opinion, the Pickering balancing test was applied to reach this conclusion). 

[37] Garcetti v. Ceballos, 547 U.S. 410 (2006).

[38] Id. at 421.

[39] Id. 

[40] Id.; Butler v. Bd. of Cty. Comm’rs., 920 F.3d 651, 655 (10th Cir. 2019).

[41] Lane v. Franks, 573 U.S. 228, 238 (2014).

[42] Butler, 920 F.3d at 653–54.

[43] Id.

[44] Id. at 654.

[45] See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600 (1982).

[46] Id. 

[47] See generally New Mexico v. GE, 467 F.3d 1223 (10th Cir. 2006) (explaining parens patriae interests of states protecting the public’s beneficial use of groundwater).

[48] Santosky v. Kramer, 455 U.S. 745, 766 (1982).

[49] Id.

[50] Gomes v. Wood, 451 F.3d 1122, 1128 (10th Cir. 2006).

[51] E.P. v. District Court, 696 P.2d 254, 258 (Colo. 1985).

[52] Ex rel E.L.M.C., 100 P.3d 546, 558 (Colo. App. 2004).

[53] Erin Bajackson, Best Interests of the Child—A Legislative Journey Still in Motion, 25 J. Am. Acad. Matrimonial L. 311, 311 (2013).

[54] Id. at 312–14.

[55] Id. 

[56] Id.

[57] Id. at 314. 

[58] Id. at 315. 

[59] Id.

[60] See generally Reginald A. Hirsch, Expert Witnesses in Child Custody Cases, 19 Family L. Q. 207 (1985) (outlining the use of expert witnesses in child custody cases). 

[61] Butler v. Bd. of Cty. Comm’rs., 920 F.3d 651, 653 (10th Cir. 2019).

[62] Id.

[63] Id.

[64] Id. at 654. 

[65] Id. 

[66] Id. at 668–69 (Lucero, J., dissenting).

[67] Pickering v. Bd. of Educ., 391 U.S. 563, 572 (1968).

[68] Id.

[69] Troxel v. Granville, 530 U.S. 57, 65 (2000).

[70] Id. at 68–69.

[71] McDermott v. Dougherty, 869 A.2d 751, 770 (Md. 2005).

[72] Troxel v. Granville, 530 U.S. 57, 86, 91 (2000).

[73] George L. Blum, Annotation, Sufficiency of Evidence to Modify Existing Joint Legal Custody of Children Pursuant to Consent Order and/or Divorce Judgment—General Principles, Jurisdictional Issues, and General Issues Related to “Best Interest of Child,” 99 A.L.R.6th 203 § 28 (2014).

[74] See Nicole Lapatis, In the Best Interest of No One: How New York’s “Best Interest of the Child” Law Violates Parents’ Fundamental Right to the Care, Custody, and Control of their Children, 86 St. John’s L. Rev. 673, 678 (2012).

[75] Id. at 688. 

[76] Colo. Rev. Stat. § 14-10-124(1) (2014).

[77] Lapatis, supra note 74, at 678. 

[78] Butler v. Bd. of Cty. Comm’rs., 920 F.3d 651, 653 (10th Cir. 2019).

[79] Id. at 653–54. 

[80] Id. at 654. 

[81] Troxel v. Granville, 530 U.S. 57, 60 (2000).

[82] Butler, 920 F.3d at 653. 

[83] Id. at 656–57. 

[84] Id. at 656.

[85] Id. at 657. 

[86] Id. at 665 (Lucero, J., dissenting).

[87] Id. at 664.

[88] Cynthia L. Estlund, Speech on Matters of Public Concern: The Perils of an Emerging First Amendment Category, 59 Geo. Wash. L. Rev. 1, 3 (1990).

[89] Id.

[90] See Butler, 920 F.3d at 665–68 (Lucero, J., dissenting).

[91] Estlund, supra note 88, at 37. 

[92] Id. at 39. 

[93] Butler, 920 F.3d at 667 (Lucero, J., dissenting). 

[94] Colo. Rev. Stat. § 19-3-100.5(1) (2018).

[95] Butler, 920 F.3d at 665 (Lucero, J., dissenting).

[96] Id. at 666 (Lucero, J., dissenting).

[97] Bailey v. Indep. Sch. Dist. No. 69, 896 F.3d 1176, 1181 (10th Cir. 2018). 

[98] Butler, 920 F.3d at 666 (Lucero, J., dissenting). 

[99] Id.

[100] Id. at 667.

[101] Id.

[102] Id. 

[103] Id. at 666–67.

[104] Sara J. Robertson, Note, Lane v. Franks: The Supreme Court Frankly Fails to Go Far Enough, 60 St. Louis U. L.J. 293, 300–01 (2016).

[105] Id. 

[106] Id. at 314.

[107] See generally Butler, 920 F.3d at 665–67 (Lucero, J., dissenting) (citing Colorado laws pertaining to the public interest in child custody).

[108] Aaron E. Zurek, Note, All the King’s Horses and All the King’s Men: The American Family After Troxel, the Parens Patriae Power of the State, a Mere Eggshell Against the Fundamental Right of Parents to Arbitrate Custody Disputes, 27 Hamline J. Pub. L. & Pol’y 357, 364 (2006). 

[109] Id.

[110] E. Gary Spitko, Reclaiming the “Creatures of the State”: Contracting for Child Custody Decisionmaking in the Best Interests of the Family, 57 Wash. & Lee L. Rev. 1139, 1144 (2000). 

Textualism and Culpability of the Reader

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Collin Hong[1]

 

Introduction

A great divide in statutory interpretation has been between purposivism and textualism.[2] Textualism has largely won this debate and has gained extensive popularity in contemporary legal culture over purposivism.[3] However, simply deciding to employ textualism over intentionalism does not fully resolve cases in many situations. In Bostock v. Clayton County, the majority, written by Justice Gorsuch, using the meaning of the language enacted by Congress in 1964, employed textualism to determine that Title VII’s prohibition on discrimination “because of  . . . sex” included discrimination based on sexual orientation.[4] The dissent, written by Justice Alito, argued that the majority was not employing textualism at all, and that textualism actually led to the opposite conclusion.[5]

This is not a new phenomenon. Throughout the Supreme Court’s recent history, different lawyers and judges have employed “plain meaning” differently based on their adopted definition of “plain meaning.”[6] In Smith, both Justice O’Connor’s majority opinion and Justice Scalia’s dissent claimed to be appealing to ordinary meaning.[7] Scalia interpreted the phrase “use a firearm” “during and in relation to” a drug trafficking crime as being limited to using a firearm as a weapon.[8] In contrast, the majority interpreted the statutory language “us[ing] a firearm” to not only include the use of the firearm as a weapon, but also the act of trading a firearm for drugs, expanding beyond Scalia’s interpretation.[9] Both the dissent and the majority characterized their interpretation as the ordinary meaning of the text despite having different outcomes.[10]

Similarly, as noted by scholars such as Victoria Nourse, textualists have not definitively determined what version of plain meaning they will use.[11] The common trend seems to lean towards expansive, legalist meaning.[12] An alternative to this expansive meaning is using prototypical meaning that represents the most common or first thought-of meaning in a given context.[13] The divide in Smith could be described as a divide between expansive and prototypical meaning, with using a firearm ‘as a weapon’ being the most prototypical meaning. The conclusion of Nourse’s article is the that textualists should clarify what type of plain meaning he or she is using when interpreting statutory text.[14]

The line between prototypical and expansive is often blurry. This paper proposes a different framing for the divide between the types of “plain meaning” in terms of the degree to which a typical reader would be aware of its meaning. This distinction implicates the culpability of the individual governed by the statute. Employing textualism should be informed by one of the primary benefits of textualism over intentionalism: fair notice to those under the statute.[15] The permissible meanings of a statute must therefore be in some way tied to the ability of the target of the statute to fairly determine the meaning. If a meaning is completely outside the reasonable contemplation of the target audience of a statute, then that target cannot be said to be fairly on notice as to the meaning of the statute. This would leave out highly unintuitive legalistic meanings that an ordinary reader of the statute could not reasonably contemplate. If a reasonable person would contemplate that meaning, even if that person was not sure whether that meaning is in the statute, then that would potentially be sufficient notice. This framing allows us to recognize a third category of textual meaning as well: a technical meaning that is the full logical extension of a phrase to the point where a reasonable person would not even contemplate that meaning.

I.  “Reasonable to Know” Meanings and “Reasonable to Contemplate” Meanings

When framed in terms of culpability, the divide between expansive and prototypical meaning can be described as a divide between a reasonable reader knowing that a particular act is covered and a reasonable reader knowing an act might be covered. A person would be culpable to some degree if she committed an act that a reasonable person would know to be forbidden or a reasonable person might not know but would contemplate that it might be forbidden. The former involves a higher level of culpability than the latter, but the latter is still nonzero culpability.

Therefore, there are two possible standards by which we can grant meaning to a statute. The first, which is similar to prototypical meaning, is that a statute simply means what a reasonable person would know it to mean. The second, similar to expansive meaning, would include anything a reasonable person would contemplate it encompassing. 

This difference can be elucidated by example. Say we have a statute: “One cannot sell fruits in this area.” A reasonable person would know with certainty that a strawberry was covered by the statute. Therefore, a strawberry would be covered by the statute by the narrower standard of “reasonable to know.” On the other hand, a reasonable person would pause at the question of whether tomatoes are covered. A reasonable person might not be sure that tomatoes are or are not covered. But if the reasonable reader were trying to sell tomatoes and knew of this statute, she would pause to consider the possibility and may seek counsel.

In both of these situations, the fruit seller can be said to have nonzero culpability if she proceeds with her act. If she attempted to sell strawberries while knowing of the statute, she would be at least negligent with respect to governing law. Not knowing that strawberries were covered would be negligent because a reasonable person would know that strawberries fall within the meaning of the word fruit. If she decided to sell tomatoes, she would be negligent if she did not pause at all because a reasonable person would know to pause and potentially investigate further. 

These two types of negligence are “reasonable to know” and “reasonable to contemplate.” The former type of negligence is of a higher degree of culpability than the latter, but both would fall under the Model Penal Code’s (MPC) definition of negligence, which is when a "reasonable person" would be aware of a "substantial and unjustifiable risk" that his or her conduct is of a prohibited nature, will lead to a prohibited result, and/or is under prohibited attendant circumstances, and the actor was not so aware but should have been.[16] Therefore, the reasonable person would not have to know that the conduct is prohibited, just know that there is a substantial risk that the conduct is prohibited.

This “reasonable to contemplate” standard is not as expansive as the most expansive usages of textualism. It would prevent any arcane and unknowable legalist meaning from controlling, unlike some formulations of expansive meaning that include technical meanings. It also prevents the intention of the legislature from controlling when that intent is not evident from the statute. 

Negligence is the bare minimum standard in terms of culpability.[17] However, when determining if a defendant is guilty of committing a crime, the standard of culpability is generally evaluated with respect to elements of the statute to determine if a defendant committed an “action” with the requisite mental state; to further clarify, whether a defendant is guilty of a crime is not determined by asking if the defendant knew her act was illegal. In criminal law generally mens rea with respect to governing law, or knowing that something is against the law, is not necessary to find culpability.[18] For example, one does not have to know that burglary is a crime to knowingly entering someone else’s property with intent to commit a crime. A reasonable person can generally be convicted of a crime without having personal knowledge of the law. This may be because there is now a presumption that there are too many laws for our system to always operate based on one having knowledge with respect to governing law, and that people in general are on notice to the fact that there might be a law governing a variety of actions. Additionally, it may be expected that a reasonable person knows what actions are generally considered immoral, such as burglary, without having to expressly know whether or not a statute exists to make such an action illegal.

However, there’s also a principle in criminal law that if one does look at a statute, or attempt to know what the governing law is, then that individual has the right to rely on the statute, or an official’s formulation of the law, under certain circumstances.[19] Further, laws can be void for vagueness if a law is so vague that a reasonable person could not know what the law covers.[20] Finally, the rule of lenity holds that ambiguous criminal statutes should be construed in favor of defendants, though it’s been limited to cases of “grievous ambiguity”.[21] So, while knowledge of governing law is not generally considered by courts when no effort was made by the criminal defendant to discover the law, courts do consider a criminal defendant’s ability to learn the law.[22] So, in the context of a retail store, since a statute barring the sale of fruit would not comport with generally understood morality, it may be more likely that some kind of warning other than just the statute’s existence should be present. Further, the United States Supreme Court has held that putting statutes behind a paywall or copyright is prohibited.[23] When one does decide to seek out the law, the law is required to be accessible — giving the reader at least some kind of constructive notice.

If a primary purpose of textualism and plain meaning is to further this principle of accessibility of law, “reasonable to contemplate” seems like the outer bounds of the meanings that would be permissible, preventing any really unknowable meanings from making it in. Textualists then must decide which, between these standards, “reasonable to know” or “reasonable to contemplate,” to employ. 

In Smith, Scalia’s meaning would fall under a “reasonable to know” formulation, as any reasonable person looking at the statute would know that using a firearm as a weapon would be covered.[24] There is a question of whether Justice O’Connor’s understanding of “use a firearm” in any way would be covered under a “reasonable to know” standard, but it would very likely be covered under a “reasonable to contemplate” standard.[25]

Another example in which the majority and the dissent were divided on the interpretation of the meaning of a statute is in Small v. United States.[26] In this case, the majority took “any court” to mean any court within the United States and not foreign courts.[27] The dissent, joined by Justice Scalia, was of the opinion that “any court” extended to foreign courts.[28] What is notable is that Justice Scalia seems to have joined an expansive meaning in Small whereas in Smith he subscribed to a prototypical meaning. This shows how imprecise even the same person asserting textual meaning without specifying what type of textual meaning can be.

Under expansive meaning, Justice Gorsuch’s textual reading of Title VII in Bostock v. Clayton Cnty., Ga is entirely valid.[29] Even at the time of its passage, it may have been reasonable to at least contemplate that Title VII would bar discrimination based on sex stereotyping. A reasonable employer is therefore on some level of notice if they were to read Title VII. If an employer were to read Title VII and proceed to discriminate based on sexual orientation alone, one may conclude that the employer would be acting with at least negligence. Therefore, discrimination on the basis of sexual orientation could fall under the textual meaning of the statute. 

II.  Technical Meaning as a Third Category of Meaning

It is possible for some logical extensions of meanings to be totally outside what is even reasonable to contemplate. For example, there may be some vegetable that current science is unaware is actually a fruit. Logically, that vegetable should be considered a fruit, just no one would reasonably be aware of that fact. Nourse grouped these technical meanings with expansive meanings,[30] but if we use the lens of culpability, we can distinguish expansive meanings that people have some notice of from meanings that a reasonable person would not even contemplate. 

Reasonable to contemplate meanings are therefore situated between prototypical and technical meanings in terms of accessibility and dependence on science. Therefore, we have not two, but actually three possible meanings that could all plausibly be called the textual meaning.   

In Smith, neither Scalia nor O’Connor asserted a technical meaning.[31] A technical meaning of this statute was asserted in Bailey vs. United States.[32] In Bailey, the government asserted that “use a firearm” included the defendant Robinson having a firearm in her apartment while she was conducting a drug trafficking transaction.[33] The government argued that she was “using” the firearm for self-defense in a passive sense in that it was present while she was trafficking drugs, even though the firearm was unloaded and locked in a trunk in the closet.[34] This meaning of “use a firearm” is arguably beyond what is “reasonable to contemplate.” O’Connor wrote for a unanimous court, but this time in favor of the more limited meaning of “use.”[35] The Court held that “use” in this context must involve “active employment.”[36] This is a meaning that is more expansive than Scalia’s Smith dissent equating “use” to “use as a firearm,”[37] but less expansive than using a firearm in a passive way as argued by the government in Bailey.[38] The below scheme is a framework to describe different textual meanings. 

Example Phrase Prototypical Meaning (reasonable to know)  Expansive Meaning (reasonable to contemplate)  Technical Meaning (reasonable person would not contemplate)
"use a firearm" Use a firearm as a weapon (Scalia) Use a firearm in an active way, e.g. trading it for drugs (O'Connor) Use a firearm in a passive way (government in U.S. v. Bailey)
Discrimination because of ... sex" Discrimination based on gender identity Discrimination based on sex stereotyping, including sexual orientation Discrimination based on aspects of sex yet unkown
Fruit  e.g. Strawberries e.g. Tomatoes Something which no one yet knows is a fruit 

[39] [40] [41] [42] 

III.  The Case for Expansive Meaning

Textualists generally disclaim use of technical meaning when they define textualism and, instead, favor defining textualism as using what meaning a reasonable person would understand the statute to mean.[43] When technical meaning is used, instead of what is reasonable to contemplate, we lose the culpability element since it is, at a minimum, seemingly unjust to find one culpable for what one cannot contemplate. Another reason we should not use these fully extended logical meanings is that Congress may not have the technical ability in each case to know the full logical meaning used by the court.

I submit that expansive meanings should not be written off like technical meanings and should be available for use. This is because a reader is still culpable with respect to governing law when they commit an act under expansive meaning. If culpability and accessibility of the law is to be the driving force in determining law, then the dividing line is between expansive meaning and technical meaning, not between prototypical meaning and expansive meaning.

Choosing between the prototypical meaning and the expansive meaning in any given case may come down to stare decisis, legislative history, or policy considerations. But if a court wanted to stick with just one type of meaning in every case, expansive meaning seems to be a better choice than prototypical meaning. 

It is somewhat difficult to find a formalist principle that actually distinguishes prototypical and expansive meaning in terms of what should be applied. Both standards would apply the MPC’s definition of negligence, “aware of a substantial and unjustifiable risk,” where applicable.[44]Prototypical meaning does not cover all the instances in which there would be a substantial risk of proceeding. Therefore, solely based on culpability of the reader, the most principled place to draw the line of textual meaning would be where a reasonable person would detect a substantial risk, meaning the expansive meaning.

Other instrumental advantages may go either way. Using “reasonable to know” would basically be like saying “if you’re unsure, then it’s not covered.” That would allow people to proceed without looking up their specific circumstance, which may be an instrumental advantage.

The line for what is reasonable to contemplate is at least marginally clearer than the line for what is reasonable to know. This is because what is reasonable to contemplate is aligned with the logical extension of the definitions of words, whereas what is reasonable to know depends more on subjective evaluations on what is the most common usage. The procedure for determining expansive meaning would be to figure out the furthest logical extension, then cut off the applications that a reasonable person would not even contemplate. 

Prototypical meaning is also at least marginally more variable between parts of the U.S. than expansive meaning is. In some parts of the U.S., it might be considered reasonable to know that a tomato is a fruit. However, that might not be the case everywhere. One may argue that the expansive meaning of “fruit” is more dependent on botany rather than common regional usages. Therefore, it’s clearer and more consistent to use the expansive, logical meaning. By the same token, it’s easier for Congress to use expansive meaning to legislate rather than trying to figure out what the prototypical meaning is. 

Conclusion

What is considered the textual meaning can vary depending on what level of typicality one adopts when reading. Using culpability of the reader as a lens allows us to discern three meanings with decreasing typicality: prototypical, expansive, and technical. What makes expansive meaning the best meaning to use is that it is the logical extension of a meaning up until the point where a reasonable person would not even contemplate it. The expansive meaning is easier to discern and uniform than the prototypical meaning because it is informed by the logical extension of the words to a greater degree than the prototypical meaning. However, it does not go so far as to be inscrutable, like the technical meaning. 

 


[I] J.D. Candidate, Stanford Law School, 2021. 

[2] Robert A. Katzmann, Judging Statutes.

[3] Jonathan T. Molot, The Rise and Fall of Textualism, 106 Colum. L. Rev. 1, 2, 29–30 (2006) (“Textualists have been so successful discrediting strong purposivism, and distinguishing their new brand of ‘modern textualism’ from the older, more extreme ‘plain meaning’ school, that they no longer can identify, let alone conquer, any remaining territory between textualism's adherents and nonadherents.”).

[4] Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731, 1737–39, 1741 (2020).

[5] Id. at 1755–56.

[6] See Michael L. Geis, The Meaning of Meaning in the Law, 73 Wash. U. L. Q. 1125, 1126 (1995).

[7] Id. at 1134 (“[T]hey each claim that they are proffering the ‘ordinary meaning’ of the phrase.”); Smith v. United States, 508 U.S. 223, 228, 242 (1993). 

[8] Smith, 508 U.S. at 245–46.

[9] Id. at 240–41 (“Both a firearm's use as a weapon and its use as an item of barter fall within the plain language of § 924(c)(1) . . . .”).

[10] Id. at 228, 242. 

[11] Victoria F. Nourse, Two Kinds of Plain Meaning, 76 Brook. L. Rev. 997, 997, 1005 (2011).

[12] Id. at 1003.

[13] Id. at 1000–01. 

[14] See id. at 1005.

[15] Note, Textualism as Fair Notice, 123 Harv. L. Rev. 542, 542 (2009).

[16] Model Penal Code §2.02 (Am. Law Inst. 2019).

[17] See id.

[18] United States v. Baker, 807 F.2d 427, 428–29 (5th Cir. 1986).

[19] Commonwealth v. Twitchell, 617 N.E.2d 609, 619 (Mass. 1993). 

[20] See Skilling v. United States, 561 U.S. 358, 402–03 (2010) (“To satisfy due process, ‘a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.’” (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983))).

[21] Muscarello v. United States, 524 U.S. 125 (1998).

[22] See Baker, 807 F.2d at 428-29; Twitchell, 617 N.E.2d at 619. 

[23] Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1503–04, 1508 (2020).

[24] See Smith v. United States, 508 U.S. 223, 241–44 (1993).

[25] See id. at 240–41. 

[26] See 544 U.S. 385, 387–88 (2005).

[27] Id. at 387.

[28] Id. at 397–98. 

[29] See, 140 S. Ct. 1731, 1737-39 (2020).

[30] See Nourse, supra note 11, at 1002–03. 

[31] See Smith v. United States, 508 U.S. 223 (1993). 

[32] See Bailey v. United States, 516 U.S. 137 (1995).

[33] Id. at 142–43, 49.               

[34] Id. at 149.

[35] Id. at 149–150.

[36] Id. at 144. (“We conclude that the language, context, and history of § 924(c)(1) indicate that the Government must show active employment of the firearm.”).

[37] Smith v. United States, 508 U.S. 223, 242 (1993). 

[38] See Bailey, 516 U.Sat 148–149.

[39] See Smith, 508 U.S. at 242 (1993).

[40] See id. at 240.

[41] See 516 U.S. at 148–49. 

[42] See Bostock v. Clayton Cnty., Ga., 140 S.Ct. 1731, 1737 (2020).

[43] See John F. Manning, What Divides Textualists from Purposivists, 106 Colum. L. Rev. 70, 76  (2006) (“Textualists give precedence to semantic context—evidence that goes to the way a reasonable person would use language under the circumstances.”). 

[44] Model Penal Code §2.02 (2019).

Public University Professors: Employees or Appointees?

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Public University Professors: Employees or Appointees?

Alicia Gilbert[I]

Introduction

In the area of employment law, defining who is and is not an “employee” is often a perplexing task that comes with important distinctions. Misclassifying an employee could lead to serious implications for the employer and a variety of potentially missed protections for the worker. Specifically, many statutory benefits that are available for "employees" are not afforded to "non-employees."[2]

The 1915 Declaration of Principles on Academic Freedom and Academic Tenure (the “Declaration”) illustrates the complexity involved in defining the employment relationship between university and college professors that courts often overlook.[3] However, before analyzing the exact complexity found in the Declaration, it is important to understand the significance of the Declaration and its influence on American colleges and universities. 

The Declaration “became the first sustained articulation of the principles of academic freedom in America.”[4] The American Association of University Professors (“AAUP”) created the Declaration, and the Declaration formed “the ideological foundation of the AAUP’s doctrines.”[5] The purpose of the AAUP is to help “shape American higher education by developing the standards and procedures [to] maintain quality in education and academic freedom in this country’s colleges and universities.”[6] Therefore, the subject of the Declaration aims at defining what academic freedom means when applied to a professor.[7] The Declaration reveals, “[a]cademic freedom . . . comprises three elements: freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extramural utterance and action.”[8] Since its enactment, the Declaration has become “one of the most influential definitions of academic freedom in America.”[9]

The relevant parts of the Declaration to the employment classification context reveal that “members of university faculties,” which include college professors, are “appointees” and “not in any proper sense the employees” of the university.[10] This refusal to label professors as employees portrays the AAUP’s goal, which is to showcase the importance of “professional autonomy and collegial self-governance” through the Declaration.[11] The Declaration goes further in explaining this refusal by saying, “faculty are not ‘employees’ answerable to the will of their employers but instead ‘appointees’” who are answerable to the public.[12] Moreover, professors are labeled “appointees” rather than employees because “[faculties] are ‘appointed’ to discharge the essential university function of producing knowledge” to the public.[13]

The Declaration explicitly states that professors should not be considered employees of their respective university.[14] Once appointed, the Declaration claims “the [professor] has professional functions to perform in which the appointing authorities have neither competency nor moral right to intervene.”[15] The appointing authority that the Declaration is referring to is the college or university employing the professor.[16]

Further, the Declaration reveals “ordinary institutions should be viewed as public trusts” that should not be able to resist the teachings of professors.[17] With professional autonomy and collegial self-governance at the heart of the AAUP, the Declaration states, “[u]niversity teachers should be understood to be, with respect to the conclusions reached and expressed by them, no more subject to the control of the trustees, than are judges subject to the control of the president, with respect to their decisions.”[18]

Although professors have historically been thought to be employees in terms of receiving statutory protections from their respective institutions, the Declaration urges against this classification.[19] Since the Declaration explicitly states that professors should not be considered employees, the proper label for professors is not entirely clear. 

The purpose of this Note is to examine the working relationship of university professors and the statutory protections afforded to employees and “non-employees.” This Note argues that despite the Declaration explicitly stating professors should not be considered employees, the employee categorization is the best classification available for professors. Part I will begin with a brief overview of the historic distinction between being an employee and an independent contractor. Part II will examine why classifying professors as “employees” and not appointees best suits their job duties. Finally, this Note will conclude by reiterating that regardless of how much the AAUP urges that professors are appointees, this classification is not plausible with how America has defined worker classifications.

I.  A Brief Historical Overview of the Distinctions Between Employees and Independent Contractors            

A.  The Common Law Control Test and The Economic Realities Test

Before the current employer-employee label developed to define an employment relationship, the precursor was the “master-servant” label.[20]Although the terms master and servant have largely been replaced with that of employer and employee, sometimes the old master-servant language is still used to refer to employment classifications.[21]

When courts analyze the employer-employee relationship, the “paramount consideration” for “determining the scope of . . . liability” is “the master’s control over [the] servant.”[22] The Restatement of Agency defines a master as “a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the [worker] in the performance of the service.”[23] “A servant is [a person] employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.”[24] The master-servant relationship is not the only possible classification for a working relationship either.[25] The Restatement of Agency recognizes another well-known classification known as the employer-independent contractor relationship.[26] An “independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.”[27] Defining the working relationship as either employer-employee or employee-independent contractor is important and courts, using various factors, have developed several tests to help aid in determining which classification is best. 

To help determine worker classification, the court in McCary v. Wade outlined the common law approach, which focuses on how much control the employer has over a worker to determine worker classification.[28] The court in McCary provides an example of how the control test can be applied with various factors of a court’s choosing to help determine worker classification status.[29] The common law approach is not the only test to determine worker classification though. Eventually, another worker classification test, known as the economic realities test, developed.[30] Instead of focusing on control as the paramount consideration the economic realities test looks to the totality of the circumstances to determine worker classification.[31]

Under this test, one factor that courts can look to is how integral “the performance of the [worker’s] duties” is to “the employer’s business.”[32]By looking at not only how much the worker relies on the employer, but also how much the employer relies on the worker is a shift from the common law approach.[33] However, like the common law control test, not all courts apply the same factors.[34] Overall, “figuring out whether or not a person is an employee of an organization (as opposed to a contractor, for example) is complicated.”[35]

II.  Why Employee Status Makes Sense and Appointee Status Just Doesn’t Work

This Note argues that although the 1915 Declaration insists that university professors are appointees of their respective universities that classification is not appropriate. There currently is not a test to determine whether a worker is an appointee rather than an employee or independent contractor.[36] It is quite surprising that the Declaration is such an influential document in terms of defining academic freedom for public professors; however, courts have not considered labels other than that of an employee or independent contractor when analyzing the professor worker classification.

Moreover, some courts appear to be so confident that a professor is an employee that other classifications, such as independent contractor status, are usually not considered.[37] When looking at the bigger picture, it makes the most sense to label university faculty into a category that already exists rather than creating a new category of appointees in the employment context. 

Although the Declaration demands that university professors be considered appointees, appointees do not fall into the common worker categories. Generally speaking, workers are either classified as employees or independent contractors.[38] In addition, courts will be less inclined to consider a professor as an appointee when that categorization requires reworking worker classifications within employment law. Appointees of a university may be viewed differently than say, for example, a political appointee. However, it’s unclear whether both would fall under the new label of appointee and it certainly does not make sense to burden courts with creating a new employee classification that only applies to public university professors. Keeping the main labels of an employee or independent contractor is the most practical solution because it is what courts, employers, and workers are used to. 

Since categorizing a professor as an appointee is not an available alternative, it is important to consider whether a professor should be labeled as an employee or an independent contractor. When an employer classifies a worker as an employee rather than an independent contractor it requires the employer to pay minimum wage and overtime[39], follow occupational safety laws[40], and follow federal anti-discrimination laws, to name a few.[41] However, these same protections are not afforded to independent contractors.[42] Employers “do not generally have to withhold or pay any taxes on payments to independent contractors.”[43] Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex or national origin but even these protections only apply to employees, not independent contractors.[44] Applying the economic realities test and the common law approach to the university professors’ duties will help explain why the employee classification is best suited for university professors. 

A.  Applying the Economic Realities Test to a Public Professor’s Job Duties

The economic realities test looks to the totality of the circumstances to determine worker classification.[45] The court in Fitzgerald v. Mobil Oil Corp. reiterated the idea that the economic realities test is a highly fact-intensive inquiry and that “the language of a written [employment] agreement . . . is not controlling.”[46] The elements of the economic realities test that the court in Fitzgerald used include: “(1) control of a worker’s duties, (2) the payment of wages, (3) the right to hire and fire and the right to discipline, and (4) the performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal.”[47]

Applying the economic realities test to professors’ job first requires consideration of the control the university has over the professor’s duties.[48]Public universities and colleges that employ professors generally exert little control over them.[49] According to the American Association of Undergraduate Professors, who authored the Declaration, teachers are entitled to freedom in research, in publication, and the classroom as long as they are following their academic duties.[50] Professors have the freedom to inquire into new topics; however, they are still engaged in the university by teaching certain courses.[51] Furthermore, though professors have the freedom to explore new topics, the university benefits every time a professor's work is published by gaining publicity and sometimes by even gaining a monetary benefit.[52]

Also, in terms of control, universities’ control could take the “form of ‘goals’ subject to annual review, such as . . . writing goals for law professors.”[53] Nevertheless, professors still enjoy “considerable discretion over the hours they work,” which cuts against the finding of an employment relationship.[54] The more autonomy a professor enjoys, the more they resemble an independent contractor.[55]

The next element of the economic realities test factors in the payment of wages.[56] University faculty professors are provided with a salary from their respective public institutions.[57] Since pay is provided by the university, this leans more toward professors being employees. The reason for this is because “[a]n employment relationship involves being placed on the employer’s payroll” and “[e]mployees [are] . . . paid a pre-determined amount” such as a salary.[58]

The third element pertains to the rights of the worker in question in being able to hire, fire, and discipline other workers.[59] Though such occasions may be rare, universities are certainly free to discipline their faculty.[60] This reveals that professors resemble an employee because employers hiring independent contractors are encouraged not to conduct “performance reviews or tak[e] disciplinary action” as they would with an employee.[61]

The last element concerns mutual dependence.[62] The more dependent a worker is on the employer, the more likely the worker is considered an employee.[63] Although faculty and the university seem somewhat dependent on each other, the fact that professors depend on the university for their salary and workplace shows they are probably still best suited to be an employee.[64]

B.  Applying the Common Law Control Test to a Public Professor’s Job Duties

The common law control test approach “focuses on the employer’s right to control the employee/independent contractor” as a paramount consideration.[65] Similar to the economic realities test, “labels placed on employees, are not controlling and the entire circumstances must be examined.”[66]

Under the common law control test approach, the elements considered are:

The extent of control which . . . the master may exercise over the details of the work; whether or not the one employed is engaged in a distinct occupation or business; the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; the skill required in the particular occupation; whether the employer or the workman supplies the instrumentalities . . . and the place of work for the person doing the work; the length of time for which the person is employed; the method of payment . . . ; whether or not the work is a part of the regular business of the employer; whether or not the parties believe they are creating the relation of master and servant; and whether the principal is or is not in business.[67] 

University professors are given a considerable amount of control over their work, which makes them similar to independent contractors. For example, professors typically have the freedom to teach their subjects in a manner in which they choose and professors have plenty of freedom to inquire into new topics.[68] Although university professors are not supervised daily like the average employee, they should still be considered independent contractors because university professors typically do their job without supervision when it comes to inquiring into new research topics, publishing their work, and controlling their classroom.[69]

Furthermore, lack of supervision should not always equate to independent contractor status. In today’s world, “it is increasingly typical for a business to rely on a large number of . . . professional workers, employed on a regular basis, but without close supervision and instruction.”[70] A university’s control might take “the form of ‘goals’ subject to annual review, such as . . . writing goals for law professors.”[71] Professors, in general, do not need a lot of daily supervision from their employer because universities want their professors to be able to teach the material in a way that the professor sees fit.[72] Having a university supervise how a professor teaches and engages in academic writing would be counterintuitive because professors are hired to engage in original thought.[73] Therefore, when looking at the employment relationship as a whole, it appears the proper label for university professors, under the control test, is employees. 

Also, it is worth mentioning that courts rarely analyze the worker status of university professors.[74] Consider the Supreme Court case of Garcetti v. Ceballos regarding a teacher’s right to free speech.[75] The Supreme Court held “[w]hen public employees make statements pursuant to their official duties, [they] are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[76] The Court went on to say “[t]his ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor.”[77] Although the Court does not engage in an analysis regarding the employment classification of public university professors, this case could at least imply that the Court may consider a university professor to be an employee.[78]

Even in the rare instance that the courts engage in the employee analysis, it’s not in regards to the typical university faculty professor.[79] For example, the court may engage in the analysis for an adjunct professor, but an adjunct professor is obviously different than being a full-time professor of a university.[80] “Adjunct professors are hired by schools on a contractual, part-time basis as opposed to the traditional university model of full-time employment”;[81] therefore, it makes sense that courts would engage in the worker classification analysis.

Regardless of whether courts typically engage in the worker categorization analysis in regard to university professors, the courts seem to have it right, as the Declaration is not viable in terms of it defining professors as appointees. 

Conclusion

In conclusion, university and college professors should be labeled as employees under worker classification labels. Although the influential Declaration demands that professors should be considered appointees and not employees, the employee label provides university faculty with the most statutory protections.[82] In addition to statutory protections, university faculties do not fit under the category of “non-employees,” often referred to as independent contractors. 

Furthermore, it is not practical to consider university professors appointees when appointees are not a category in the worker relationship – the options are generally limited to employee or independent contractor.[83] Courts have traditionally labeled those in an employment relationship as employees or non-employees, typically referred to as independent contractors. Creating a whole new category for university faculty does not seem like a plausible solution. 

Overall, it makes the most sense to label university faculty as employees. University professors enjoy considerable independence in their work, but the university still exerts control over the faculty through various other areas of the worker relationship. The courts, by bypassing analyzing the employment relationship and regarding university professors as employees, seem to have gotten it right. Despite this, the Declaration should still be considered viable for its overall definition of academic freedom in America, but it is certainly not viable in terms of defining the employment relationship between that of the university and the professor. Essentially, the language of the appointee classification should be removed as a label for public university professors.


[I] J.D. expected 2020, University of Kentucky J. David Rosenberg College of Law; B.A.; Eastern Kentucky University (2017).

[2] See generally 29 U.S.C. § 203 (2018); 42 U.S.C. § 2000e-2 (1991) (defining particular unlawful employment practices that only apply to employees).

[3] Am. Ass’n of Univ. Professors, 1915 Declaration of Principles on Academic Freedom and Academic Tenure (1915), https://www.aaup.org/NR/rdonlyres/A6520A9D-0A9A-47B3-B550-C006B5B224E7/0/1915Declaration.pdf [https://perma.cc/29T2-TWC5].

[4] David Randall, Charting Academic Freedom: 103 Years of Debate, National Association of Scholars (Jan. 15, 2018), https://www.nas.org/reports/charting-academic-freedom-103-years-of-debate/full-report [https://perma.cc/6E6L-X6C5].

[5] John K. Wilson, AAUP’s 1915 Declaration of Principles: Conservative and Radical, Visionary and Myopic, 7 AAUP J. Acad. Freedom 1, 1 (2016), https://www.aaup.org/sites/default/files/Wilson_1.pdf [https://perma.cc/PG4E-MW96]. 

[6] About the AAUP, AAUP, https://www.aaup.org/about-aaup [https://perma.cc/M8DE-FAXU] (last visited Mar. 1, 2020).

[7] Am. Ass’n of Univ. Professors, supra note 3, at 291, 292. 

[8] Id. at 292. 

[9] Wilson, supra note 5, at 1.

[10] Am. Ass’n of Univ. Professors, supra note 3, at 295.

[11] See Mark L. Adams, The Quest for Tenure: Job Security and Academic Freedom, 56 Cath. U.L. Rev. 67, 79 (2006) (citation omitted). 

[12] Matthew W. Finkin & Robert C. Post, For the Common Good: Principles of American Academic Freedom 34 (2009).

[13] Id. at 35.

[14] Am. Ass’n of Univ. Professors, supra note 3, at 295. 

[15] Id. 

[16] See id.

[17] Donald J. Weidner, Academic Freedom and the Obligation to Earn It, 32 J.L. & Educ. 445, 448 (2003).

[18] Am. Ass’n of Univ. Professors, supra note 3, at 295. 

[19] Seee.g., Urofsky v. Gilmore, 216 F.3d 401, 425 (4th Cir. 2000) (holding that “there is no constitutional right of free inquiry unique to professors or any other public employee") (second emphasis added); Risa L. Lieberwitz, The Corporatization of the University: Distance Learning at the Cost of Academic Freedom?, 12 B.U. Pub. Int. L.J. 73, 89–90 (2002) (noting public university faculty have First Amendment rights as public employees).

[20] Restatement (Second) of Agency § 220(1) cmt. g (Am. Law Inst. 1958); Gerald M. Stevens, The Test of the Employment Relation, 38 Mich. L. Rev. 188, 189 (1939).

[21] See Restatement (Second) of Agency § 220(1).

[22] John Bruntz, The Employee/Independent Contractor Dichotomy: A Rose is Not Always a Rose, 8 Hofstra Lab. & Emp. L.J. 337, 338–39 (1991).

[23] Restatement (Second) of Agency § 2(1) (Am. Law Inst. 1958).

[24] Id. § 2(2).

[25] See Id. § 2(3).

[26] Id. 

[27] Id.

[28] McCary v. Wade, 861 So. 2d. 358, 361, 363 (Miss. Ct. App. 2003); How To Apply the Common Law Control Test in Determining an Employer/Employee Relationship, Social Security Administration, https://www.ssa.gov/section218training/advanced_course_10.htm#4 [https://perma.cc/YU6S-DFTT] (last visited Mar. 5, 2020).

[29] McCary, 861 So. 2d. at 361.

[30] Jane P. Kwak, Note, Employees Versus Independent Contractors: Why States Should Not Enact Statutes That Target the Construction Industry, 39 J. Legis. 295, 296–97 (2012–2013).

[31] Fitzgerald v. Mobil Oil Corp., 827 F. Supp. 1301, 1303 (E.D. Mich. 1993).

[32] Id.

[33] See id.; McCary v. Wade, 861 So. 2d. 358, 361, 363 (Miss. Ct. App. 2003).

[34] Classification Tests, WorkerClassification.com, https://www.workerclassification.com/classification-tests [https://perma.cc/LWH3-MDFS] (last visited Mar. 15, 2019).

[35] Coverage, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/employers/coverage.cfm [https://perma.cc/K2T3-MAPL] (last visited Mar. 12, 2019).

[36] See Independent Contractor (Self-Employed) or Employee?, internal Revenue Service, https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-or-employee [https://perma.cc/2544-9XFX] (last visited Mar. 13, 2019) (explaining that business owners must either classify their workers as employees or independent contractors).

[37] See Garcetti v. Ceballos, 547 U.S. 410, 438 (2006) (Souter, J., dissenting).

[38] Worker Classification: Employee vs. Independent Contractor, Pine tree legal assistance, https://ptla.org/worker-classification-employee-vs-independent-contractor# [https://perma.cc/44CV-7QP3] (last visited Mar. 13, 2019).

[39] Fair Labor Standards Act, 29 U.S.C. §§ 206-207 (1983).

[40] The Occupational Safety and Health Act (OHSA) requires employers only to provide safe workplaces for “employees.” 29 U.S.C.A. § 654(a) (1970). 

[41] 42 U.S.C. § 2000e-2 (1991).

[42] Kwak, supra 30, at 295.

[43] Independent Contractor (Self-Employed) or Employee?, supra note 36.

[44] 42 U.S.C. § 2000e-2 (1991); Brown v. J. Kaz, Inc., 581 F.3d 175, 177 (3d Cir. 2009).

[45] Fitzgerald, 827 F. Supp. at 1303.

[46] Id.

[47] Id. (citation omitted). 

[48] Id. at 1303–04.

[49] See Donna R. Euben, Academic Freedom of Professors and Institutions 2 (May 2002), https://www.aaup.org/issues/academic-freedom/professors-and-institutions [https://perma.cc/A5A9-CCB2].

[50] Id.

[51] See generally, Marshall Shepherd, Professors Are Often Asked ‘What Do You Teach?’ But They Do Far More, Forbes (July 19, 2018, 11:02 AM), https://www.forbes.com/sites/marshallshepherd/2018/07/19/professors-are-often-asked-what-do-you-teach-they-do-far-more/#1c7d96301745 [https://perma.cc/HTF5-UBRN] (explaining the variety of roles that professors take on beyond the courses they teach for the university).

[52] Id.

[53] Richard R. Carlson, Why the Law Still Can't Tell an Employee When it Sees One and How it Ought to Stop Trying, 22 Berkeley J. Emp. & Lab. L. 295, 341 (2001).

[54] Id. at 346.

[55] Independent Contractors vs Employees, Funding Circle (Dec. 12, 2019), https://www.fundingcircle.com/us/resources/independent-contractors-vs-employees/ [https://perma.cc/7B5B-RK9U].

[56] Fitzgerald, 827 F. Supp. at 1303.

[57] See Colleen Flaherty, AAUP: Faculty salaries up slightly, but budgets are balanced ‘on the backs’ of adjuncts and out-of-state students, inside higher ed (Apr. 11, 2017), https://www.insidehighered.com/news/2017/04/11/aaup-faculty-salaries-slightly-budgets-are-balanced-backs-adjuncts-and-out-state [https://perma.cc/8MB8-JULJ]. 

[58] Independent Contractors, University of Hawai’i at Mãnoa, http://manoa.hawaii.edu/careercenter/files/Independent_Contractors.pdf (last visited Mar. 11, 2019).

[59] Fitzgerald, 827 F. Supp. at 1303.

[60] Donna R. Euben, AAUP Staff Counsel & Barbara Lee, Rutgers University, Faculty Misconduct and Discipline, Presentation to the National Conference on Law and Higher Education at the Stetson University College of Law (Feb. 20–22, 2005), https://www.aaup.org/issues/appointments-promotions-discipline/faculty-misconduct-and-discipline-2005 [https://perma.cc/QAF4-E5EC].

[61] Working with Independent Contractors: Know the IRS Rules and Regulations, efile4Biz, https://www.efile4biz.com/working-with-independent-contractor-irs-rules-and-regulations [https://perma.cc/727U-FZS9] (last visited Mar. 12, 2019).

[62] Fitzgerald, 827 F. Supp. at 1303.

[63] Kelso L. Anderson, Independent Contractors Might Actually Be Employees, aba (Nov. 23, 2018), https://www.americanbar.org/groups/litigation/publications/litigation-news/featured-articles/2018/independent-contractors-might-actually-be-employees/ [https://perma.cc/7K82-MK2Y].

[64] Id.

[65] Deanne M. Mosley & William C. Walter, The Significance of the Classification of Employment Relationships in Determining Exposure to Liability, 67 Miss. L.J. 613, 632 (1998).

[66] Mitchell H. Rubenstein, Employees, Employers, and Quasi-Employers: An Analysis of Employees and Employers Who Operate in the Borderland Between an Employer-and-Employee Relationship, 14 U. PA. J. Bus. L. 605, 617 (2012).

[67] Restatement (Second) of Agency § 220(2).

[68] Euben, supra note 49.

[69] Id.

[70] Carlson, supra note 53, at 341.

[71] Id.

[72] See Euben, supra note 49. 

[73] Id. (citing Keyishian v. Board of Regents, 385 U.S. 589 (1967)).

[74] See generally Garvey v. Dickinson Coll., 761 F. Supp. 1175 (M.D. Pa. 1991); Kortyna v. Lafayette Coll., 47 F. Supp. 3d 225, 235 (E.D. Pa. 2014) (examples of cases where a professor’s status as an employee is not in dispute). 

[75] See Garcetti, 547 U.S. at 410. 

[76] Id. at 421 (emphasis added).

[77] Id. at 438 (emphasis added).

[78] Id.

[79] Id.

[80] Id. 

[81] Alisa Bates, How to Become an Adjunct Professor, Room 241 Blog (Oct. 30, 2019), https://education.cu-portland.edu/blog/teaching-careers/adjunct-professor/ [https://perma.cc/35BR-PWVN].

[82] See supra note 39.

[83] See supra note 36.

Reexamining the Civil Money Penalties of EMTALA and Their Effect on Inner-City Hospitals

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Reexamining the Civil Money Penalties of EMTALA and their Effect on Inner-City Hospitals

 Rachele Taylor Yohe[I]

Introduction

 Hospitals and medical facilities are often thought of as safe places for everyone, regardless of an individual’s race, gender, sexual orientation, or social standing. After all, physicians are required to swear to and abide by the Hippocratic Oath—right? In actuality, physicians are not required to swear an oath upon entering the medical profession; and for those that do swear such an oath, the terms are not legally binding.[2] Nevertheless, even if a physician is not bound by words like “first do no harm,”[3] surely a hospital or medical facility is required to uphold this standard—right? Historically speaking though, a hospital possessed no affirmative duty to provide treatment or any standard of care.[4] This is likely an alarming revelation as the idea of being turned away from a medical facility, despite suffering from a life-threatening illness, seems utterly unfathomable. Thankfully, early hospitals did not make a habit of refusing treatment to those in need and provided necessary, charitable care.[5] It was not until the mid-twentieth century, when the costs of healthcare dramatically increased and medical facilities began to take shape as a business, that it became clear that physicians and hospitals possessed no affirmative duty to provide treatment—much to the detriment of the uninsured.[6]

With the innovation of technology and diagnostic procedures, hospitals began to take shape as centralized medical facilities responsible for entire populations.[7] Prior to this growth, hospitals were generally used as “custodial institutions for undesirables” including the sick, indigent, and mentally unbalanced.[8] The nineteenth and twentieth centuries, however, saw the introduction of life-saving drugs and treatments that ultimately transformed the American medical profession from needing an estimated additional 200,000 beds in 1947[9] to staffing 931,203 beds in 2019.[10] This growth, of course, increased the cost of healthcare[11] and physicians and medical facilities were incentivized to turn away patients unable to pay their medical bills.[12] One terrifying example of this occurred in 1980, when an uninsured man presented to an emergency room in St. Louis, Missouri with a steak knife lodged in his spine.[13] The hospital and its staff refused to remove the weapon until the man could produce $1,000.00 in cash.[14] By forcing the uninsured—who are more often than not homeless, indigent, or immigrants—to pay up front or not be treated at all, a hospital is able to avoid the financial burden of caring for patients who will never be able to pay their soaring medical bills. This avoidance became known as “patient dumping,” a practice where hospitals turned away poor patients or “dumped” them off at bus stations, public hospitals, or homeless shelters.[15]

In 1986, Congress recognized the threat of patient dumping and enacted a comprehensive statutory scheme known as the Consolidated Omnibus Budget Reconciliation Act (“COBRA”).[16] The vast majority of COBRA is unrelated to the concerns of patient dumping, focusing on insurance and healthcare plans; within COBRA, however, is the Emergency Medical Treatment and Active Labor Act (“EMTALA”), a series of regulations imposing standards of care on physicians and hospitals that must be met when an individual presents to an emergency room and requests treatment.[17] Fittingly, EMTALA is referred to as the “antidumping statute,”[18] as it is a targeted attempt at ensuring that hospitals do not engage in patient hot potato with each other. At its inception, Congress believed that it would be a weapon for victims of patient dumping.[19] In practice, however, the Act bred far more problems than solutions, in part because it places the entirety of fault on the wrong party—the hospital. Recognizing and combatting the problem of patient dumping cannot be one-sided; Congress must look at why hospitals send the uninsured away, which is assuredly not because of a cold-hearted desire to watch the uninsured suffer. It is far more likely that the true reasoning for sending patients away is the rising costs of healthcare, which EMTALA does nothing but exacerbate. Under EMTALA, it is the hospital that is required to provide a level of treatment to all individuals—regardless of their ability to pay.[20] Hospitals are forced to pay out millions of their own funds to cover the treatment costs of the uninsured[21] and as the statute is an unfunded mandate, these hospitals are never reimbursed for these payments.[22] As one can imagine, this is a significant financial burden on our medical facilities which is why scholars have railed against the effects of EMTALA since its enactment.[23]  

Importantly, this Note does not seek to build on past discussions of the financial burdens associated with EMTALA compliance, but rather it explores the consequences of a medical facility’s failure to meet its standards, including what is known as “civil money penalties.”[24] EMTALA’s civil money penalties are levied against violating hospitals not equally, but based on the facilities’ capacity—its total number of beds.[25] Under this facially-discriminatory punishment, the more beds a facility houses, the greater the penalty it faces for violations.[26] The civil money penalties were recently adjusted for inflation in 2017, and it is this increase that sparked the arguments herein. Specifically, Part I reviews the general requirements of EMTALA and the possible penalties that physicians and medical facilities face for violations. Part II will briefly explain the 2017 inflation increase, noting how the civil money penalties have more than doubled as a result. Part III analyzes how EMTALA’s capacity-based penalties pose a significantly higher burden on inner-city hospitals given the increased population of uninsured individuals in major cities in comparison to rural areas. Part IV offers a solution to this burden by arguing that the capacity-based penalty should be abolished. It also considers the possible ramifications of said solution and concludes that regardless of the risks, EMTALA’s capacity-based penalty structure must be reevaluated in light of its burden to inner-city hospitals. 

I.  The Emergency Medical Treatment And Labor Act 

As stated above, the Emergency Medical Treatment and Labor Act (“EMTALA”), codified as 42 U.S.C. § 1395dd, was enacted in 1986 to prevent medical facilities from withholding life-saving treatment based on a patient’s ability to pay. Importantly though, EMTALA was specifically targeted and structured to burden hospitals’ emergency rooms, the primary providers of treatment for the uninsured both then and now.[27] Given that its requirements are only imposed on facilities with emergency rooms—and in addition to that, only those facilities who participate in the federal Medicare program[28]—one might assume that EMTALA and its requirements are not widespread in their enforcement. This is incorrect. The vast majority of medical facilities participate in the Medicare program and operate emergency rooms, which thus, subjects them to EMTALA’s provisions.[29] And in fact, since EMTALA’s creation, many Medicare-participating facilities have closed their emergency rooms altogether to avoid the financial burdens of EMTALA.[30] As this Part discusses below, those financial burdens take shape through EMTALA’s requirements and penalties. 

A.  The Requirements Of EMTALA: 42 U.S.C. § 1395(a)–(c)

The requirements of EMTALA are codified in its first three provisions, 42 U.S.C. § 1395dd(a)–(c).[31] At its simplest, the statute provides that when an individual comes to an emergency room of a Medicare-participating facility for examination or treatment, the facility must “provide for an appropriate medical screening examination within the capability of the hospital’s emergency department” in order to determine if an “emergency medical condition” exists.[32] Then, if such a condition exists, the facility must provide, within its capabilities, whatever is necessary to “stabilize the medical condition”[33] or, in the alternative, the facility must provide transfer to another, better-equipped facility.[34] Notably, however, a transfer is conditioned on the patient’s written consent and a physician’s signed certification that the benefits at another facility outweigh the risks of a transfer.[35] Interestingly, the receiving hospital must accept the patient being transferred if it is within its capacity and specialized capability[36]—regardless of whether or not it has an emergency room to subject it to the provisions of EMTALA.[37] Thus, even though EMTALA’s requirements bind only those facilities who participate in the Medicare program and operate an emergency room, EMTALA can still affect all medical facilities. 

What should be evident upon reading the aforementioned provisions is that a hospital’s compliance with EMTALA is a substantial financial burden. For example, the requirement that a hospital perform a medical screening alone can represent a spectrum of procedures from “a simple process involving only a brief history and physical examination to a complex process that also involves performing ancillary studies and procedures.”[38] Similarly, what constitutes “stabilization” of an existing emergency medical condition can be “brief or long depending on the condition [of the patient].”[39] Recall that EMTALA is an unfunded mandate, and regardless of what is needed to “screen” and “stabilize” the patient, the hospital is required to furnish the entire bill.[40] Perhaps one of the most controversial political topics of American twenty-first century debate is whether healthcare needs to be government-mandated or continue to be privatized;[41] however, if you put the debate in the context of EMTALA, the public would realize that we already enjoy a version of universal, government-mandated healthcare—one that places the entire financial burden not on the taxpayers, but on the medical facility itself.[42]

As noted above, the focus of this Note is not to add to the existing scholarship discussing the financial burdens of EMTALA’s requirements, but to focus instead on the penalties of EMTALA. Nevertheless, it is important to understand the basic requirements and the financial costs imposed on medical facilities in complying with EMTALA in order to see the offset of financial costs imposed for a hospitals’ non-compliance. The Center for Medicare and Medicaid Services (“CMS”), a division of the United States Department of Health and Human Services, is responsible for enforcing and regulating medical facilities’ compliance with the aforementioned provisions of EMTALA.[43] In the event that a medical facility violates the provisions of EMTALA, the statute provides the CMS—and even the actual victims of patient dumping—a number of possible punishments and remedies to invoke that are explained in this Part below. 

B.  The Penalties Of EMTALA: 42 U.S.C. § 1395dd(d)

While the prior section summarized the requirements of EMTALA’s first three provisions, this section illustrates the five penalties for a hospitals’ failure to meet said requirements, all of which are codified in EMTALA’s fourth provision, 42 U.S.C. § 1395dd(d).[44] As will be shown, each EMTALA penalty imposes its own unique financial burden on a medical facility and its physicians, evidencing Congress’s strong intentions with respect to curtailing all instances of patient dumping. It should be noted that none of the following available penalties are exclusive, and a hospital may be held responsible under each penalty for each violation depending on the given circumstances.[45]

The first possible penalty of EMTALA, which is arguably the most severe, is the termination of a hospitals’ Medicare provider agreement as provided for in 42 U.S.C. § 1395dd(d)(1)(B). Scholars recognize this as the “real economic weapon” of EMTALA,[46] as the termination of a hospitals’ Medicare agreement can cost the facility millions of dollars in funding and loss of reputation.[47] In fact, for a majority of hospitals, Medicare funding represents more than thirty percent of the budget and roughly fifty-five percent of the revenue.[48] Its loss can constitute a death sentence for many facilities.[49] Under EMTALA, however, this penalty is reserved for “gross and flagrant” violations or repeated violations, and therefore is not routinely invoked.[50] Notwithstanding its rarity, it remains the loaded gun of EMTALA that bullies facilities into compliance or shutting their emergency departments down altogether. 

A second possible penalty codified by EMTALA is one against the individual physician, as provided for in 42 U.S.C. § 1395dd(d)(1)(B). In the event that a physician negligently violates a requirement of EMTALA, that individual physician is subject to a civil money penalty of up to $50,000.00 for each of his or her violations.[51] Much like the previous penalty of EMTALA, this penalty is a rarity. In 2017, a study was published analyzing 196 civil money penalty settlements made over a thirteen-year period.[52] Of these settlements, only eight (roughly four percent) were made against the individual physician and the penalty ranged from $10,000.00 to the full $50,000.00.[53] Only one physician was penalized with the full $50,000.00 fine, which was levied for failure to respond to a request to evaluate a patient who later died.[54] Thus, while this penalty is clearly not enforced often, the statistics of the 2017 study nonetheless prove that EMTALA’s head enforcer, the Office of the Inspector General (“OIG”), is not opposed to penalizing individual physicians. Consequently, the threat of a lofty individual penalty remains an “often-feared consequence” of EMTALA for physicians.[55]

The third possible penalty of EMTALA is the private statutory cause of action provided for in 42 U.S.C. § 1395dd(d)(2)(A),[56] which allows victims of patient dumping to bring a direct action against the violating hospital for monetary remedies. Importantly, however, this remedy has its limitations. For one, the action may only be brought against the hospital—not the physician.[57] Also, the existence of a private, federal cause of action does not necessarily preempt the existing, substantive law of a given state.[58] For example, EMTALA does not compete with state medical malpractice law as EMTALA itself is not a federal malpractice statute.[59] Congress did not intend for EMTALA to address injuries already covered by state law.[60] Nevertheless, plaintiffs still tack on EMTALA claims in conjunction with state malpractice actions simply because the alleged incident occurred in an emergency room.[61] The crucial distinction between these claims is that a hospital is ordinarily not liable for its physicians’ malpractice, but it is liable for its physicians’ EMTALA violations.[62] Thus, by adding an EMTALA cause of action pursuant to 42 U.S.C. § 1395dd(d)(2)(A), a plaintiff may force a hospital into malpractice litigation that it would not otherwise be a party to, costing the hospital thousands in attorney’s fees and costs. This third penalty of EMTALA has drastically altered the nature of medical law, allowing EMTALA to reach beyond a simple patient dumping case.[63]

A fourth EMTALA penalty, codified in 42 U.S.C. § 1395dd(d)(2)(B), is a second statutory, civil cause of action available to medical facilities. In the event that a hospital suffers damages due to another hospitals’ violation of EMTALA, the injured hospital may bring suit to recover its damages.[64] After much research, however, it is important to note that there exists little evidence that this penalty is ever utilized by injured hospitals. The reason for this rarity is likely because hospitals—and the medical profession as a whole—are historically united in their disdain for EMTALA and its unreasonable burdens.[65] It is also possible that hospitals rarely invoke this penalty because their damages are simply too difficult to quantify or to discover in the two-year statute of limitations imposed by EMTALA.[66] Since the statute of limitations begins to run from the date of the violation, it is entirely possible that hospitals simply do not discover the violation in time to sue. Another possible reasoning for hospitals’ decisions to not invoke this penalty may simply be that they have a desire to keep amicable and fruitful relationships with their neighboring facilities.[67] Nevertheless, regardless of the reasoning, this fourth penalty of EMTALA remains toothless by practice. 

The final possible penalty of EMTALA—and the fuse for this Note—is the civil money penalty imposed on violating facilities pursuant to 42 U.S.C. § 1395dd(d)(1)(A). Prior to 2017, if a hospital violated EMTALA, it faced a civil money penalty of either $25,000.00 or $50,000.00 depending on its bed capacity.[68] Those medical facilities with less than 100 beds received the lesser penalty of $25,000.00; and those facilities with more than 100 beds would face the full $50,000.00 penalty.[69] Given this facial discrepancy, imagine the following scenario: an inner-city hospital with 115 beds treats patients that are roughly ninety percent uninsured, while a rural hospital with eighty beds treats patients that are roughly ten percent uninsured. Despite the difference in patient insurance coverage, the inner-city hospital is punished twice as severely simply because it has more than 100 beds. Notably, the difference in penalty has nothing to do with the circumstances of the actual violation—meaning that the rural hospital will still receive the lesser punishment even though its violation resulted in the death of a patient, while the urban facility will still receive the higher penalty even though its patient survived.[70]

In the event that a hospital violates the requirements of EMTALA, the OIG levies these civil money penalties through discretionary, administrative actions.[71] Notably, of the preceding five possible EMTALA penalties, this fifth penalty is arguably the most invoked. In fact, a 2001 study demonstrated that from 1995 to 2000, the OIG collected more than five million in fines from violating hospitals and physicians.[72] More recently, a 2017 study found that from 2002-2015 more than a quarter of hospitals were cited for violations.[73] Noticeably lacking from both studies, however, is any consideration or analysis of the capacity-based structure of this fifth penalty.[74] It is currently unknown how many of these cited hospitals housed more or less than 100 beds as both studies focus on the actual assessment of this penalty and not the penalty assessed itself. As will be discussed later in Part III, this is an oversight in EMTALA scholarship as the capacity-based structure of this fifth penalty is discriminatory to inner-city hospitals, which has only been exacerbated by the 2017 inflation adjustment described in this next Part. 

II.  The 2017 Civil Money Penalty Increase Due To Inflation 

In accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, the Department of Health and Human Services (“DHHS”), which oversees the Center for Medicare and Medicaid Services (“CMS”), began updating its regulations for inflation—including EMTALA and its civil money penalties.[75] Its claimed reasoning was to “improve the effectiveness of civil monetary penalties” and to ultimately maintain their deterrent effect.[76] As a result, the civil monetary penalty for an EMTALA-violating hospital is now $52,414.00 for facilities with less than a hundred beds and $104,826.00 for those facilities with more than a hundred beds.[77] Notably, these new figures are more than twice the amount of the previous EMTALA penalties; though, given that EMTALA was first enacted over thirty years ago, it is not unheard of that an inflation adjustment would double the original penalty. Nevertheless, it is a fair assumption that this drastic increase to EMTALA’s penalties will not minimize the financial burdens of the statute discussed in Part I, but rather exacerbate its many faults—including the unfortunate closing of many facilities.

A 2017 study found that in the past decade, “more than twice as many hospitals were closed or downgraded emergency services as a result of EMTALA violations” as compared to those individually fined physicians.[78] Scholars posit that the overall burdens of EMTALA’s requirements and penalties are responsible for these closures and downgrades.[79] What is rarely considered, however, is which hospitals are being burdened the most and why. Is the eighty-bed rural facility from our example in Part I more impacted by EMTALA’s financial costs, or is the 115-bed urban facility the true sufferer at risk of closure? Only a handful of researchers recognize that EMTALA, as a whole, disproportionately burdens inner-city facilities because such facilities carry the brunt of caring for this country’s uninsured population.[80] This Note joins this discussion, but also goes a step further and argues that the capacity-based fifth penalty of EMTALA, as shown in Part I to unfairly penalize larger facilities more so than smaller ones, discriminatorily impacts inner-city facilities and should consequently be abolished. 

III.  The Burden On Highly Populated, Inner-City Regions

As noted in Parts I and II, the civil money penalties of EMTALA are levied against medical facilities based on their overall bed capacity—those facilities with less than a hundred beds are fined up to $52,414.00 for each violation, and those with more than a hundred beds are fined up to $104,926.00 for each violation. Yet, despite the plethora of scholarship currently existing on EMTALA’s requirements and burdens, scholars have never examined the effect that this capacity-based penalty has on medical facilities, particularly those located in highly populated, inner-city regions. In light of the penalty’s recent inflation adjustment, this Note (and more specifically this Part) breaches that gap in scholarship and posits that the capacity-based penalty is facially discriminatory to inner-city facilities that are, by virtue of their location and size, entirely responsible for the medical care of this country’s uninsured population.

For clarity, the logic of this Part can be condensed as follows: First, a sizeable population of uninsured Americans—a great majority of which are homeless—currently live in the United States. Second, statistics show that this uninsured, homeless population likely live in highly populated, inner-city regions. Third, hospitals with more than a hundred beds likely are located in highly populated, inner-city regions in order to accommodate their vast populations. Accordingly, inner-city hospitals treat the majority of the country’s uninsured and homeless; yet, by virtue of their size alone, these hospitals face double the penalty for violating EMTALA than that of a smaller facility that treats little to no uninsured patients. As EMTALA was enacted to prevent medical facilities from turning away the uninsured population, the capacity-based penalty of EMTALA is therefore unfairly discriminating against inner-city facilities who treat said population. 

With respect to the first point, as of 2016, the United States Census determined that roughly twenty-seven million people living in the United States lacked health insurance coverage.[81] This figure alone is enough to support the arguments herein; however, it should be noted that it represents only those the United States Census surveyed.[82] Historically speaking, the Census is notorious for its inability to accurately determine the number of homeless and indigent people living in the United States,[83] and therefore it is likely that this figure is much larger in actuality.[84] Moreover, since the new administration took office, statistics show that the uninsured population has spiked upward for the first time since the Affordable Care Act (“ACA”) was enacted in 2010.[85] In the coming years, the number will likely continue to increase in light of this administration’s hostility toward the ACA.[86] Nevertheless, it is important to recognize how the population of the uninsured affects medical facilities and their compliance with EMTALA. For one, the uninsured are more likely to be younger and minorities—the “two subpopulations that are disproportionately represented among the homeless.”[87] It is the homeless population that frequents emergency departments as their “primary or only source of health care.”[88] Consequently, hospitals who treat the uninsured homeless are more at risk for EMTALA violations because these individuals cannot pay for their care. 

But which hospitals treat the highest rates of uninsured, and by extension, are more at risk for violating EMTALA? The answer depends on where the uninsured, homeless population live. With respect to the second point of this argument, a 2018 study broke down the rates of homelessness by city, finding that “[h]alf… of all people experiencing homelessness are in one of five states – California (129,972 people), New York (91,897), Florida (31,030), Texas (25,310) and Washington (22,304).”[89] Tellingly, California, Texas, Florida, and New York rank as the top four most populous states in the country.[90] The 2018 study further found that the ten cities with the highest rates of homelessness included: New York City, New York; Los Angeles, California; Seattle, Washington; San Diego, California; San Jose, California; District of Columbia, DC; San Francisco, California; Phoenix, Arizona; Boston, Massachusetts; and Las Vegas, Nevada.[91] All of these cities fall within the thirty most-populated cities in the United States.[92] Thus, the most highly populated, inner-city regions in this country are home to the largest homeless, uninsured populations. It naturally follows that their medical facilities would treat said population and be at the greatest risk for EMTALA violations.  

As highly populated, inner-city regions are home to the largest uninsured, homeless populations, it is no coincidence that these same areas are also home to the largest medical facilities, which brings this Part to its third point. Hospitals with more than a hundred beds are more often located in more populous cities in order to accommodate their population.[93] In fact, of the twenty-five largest hospitals in the United States (measured by bed capacity), eleven are located in Florida, New York, and Texas.[94] Keep in mind that all twenty-five of these hospitals have more than 1,000 beds each.[95] Expanding further on this, of the fifty largest hospitals (measured by bed capacity), twenty-two are located in the same states, the smallest having 861 beds.[96] New York City alone houses seven of the largest fifty hospitals[97] and of its total sixty-two acute care facilities, only three have less than a hundred beds.[98] Consequently, these numbers reflect the fact that medical facilities located in highly populated, inner-city areas house the most beds in addition to the largest homeless, uninsured populations. Yet, despite the fact that these facilities are disproportionately forced treat the uninsured, EMTALA nevertheless penalizes said facilities for violating its requirements solely based on their capacity, and not the given circumstances. The statute itself provides no reasoning for this capacity-based distinction and, as will be discussed in the following Part, it should be abolished altogether. 

IV.  Abolishing The Capacity-Based Penalty

The existing scholarship with respect to EMTALA is a plethora of legal and medical arguments regarding its constitutionality and practicality. Perhaps justifiably, scholars and researchers predominately focus on the overall impacts and effects of EMTALA, leaving its minor nuances and provisions alone.[99] The reason for this is likely because a great many scholars do not propose amendments to the statute, but rather that EMTALA should be abolished as unconstitutional. Others focus on methods of funding EMTALA so that it is no longer an unfunded mandate.[100] This Note, though not necessarily in disagreement with prior scholarship’s approach to EMTALA, proposes differently and argues that EMTALA should be amended to abolish its capacity-based civil money penalty as it discriminates against highly populated, inner-city facilities that are forced to bear the brunt of this country’s uninsured population.

EMTALA was designed to be a deterrent to hospitals that might be prone to patient dumping.[101] Its requirements and burdens reflect Congress’s sincere intention to stamp out the practice altogether and to ensure that medical facilities will think twice before sending a patient away. Given this, it makes no logical sense that Congress would draw a distinction based on bed capacity when levying EMTALA’s civil money penalties against a violating hospital. Recall the example from Part I where a rural hospital with eighty beds could intentionally violate EMTALA resulting in the death of a patient and still only be subject to a maximum civil money penalty of $52,414.00. In contrast, an urban facility with 115 beds could negligently violate EMTALA without causing the death of their patient and be subject to a maximum penalty of $104,926.00. Notwithstanding the vast difference in circumstances, the urban facility will be liable for twice the penalty as the rural facility solely because of its bed capacity. This conclusion lacks reasoning and ultimately reflects the irrelevance of the capacity-based penalty. 

Upon review of the legislative material for EMTALA, there appears to be no stated reasoning for the capacity-based penalty. Presumably though, it was enacted to ensure that larger hospitals that, as illustrated herein, treat the majority of the uninsured population would be more deterred from participating in patient dumping. It is also possible that Congress feared that the larger penalty would cripple smaller facilities; though the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which requires that agencies adjust their penalties for inflation annually,[102]defeats such protection. Nevertheless, the reasoning seems inconsequential when scholars are in almost universal agreement that the sole deterrent of patient dumping comes from a single provision of EMTALA—the termination of a hospitals’ Medicare provider agreement as provided for in 42 U.S.C. § 1395dd(d)(1)(B).[103] Thus, the discrimination of EMTALA’s civil money penalties is unnecessary and need only be eliminated by an act of Congress. With a plethora of penalties available, levying a uniform civil money penalty against violating hospitals will have little to no consequences.

While abolishing the capacity-based structure of EMTALA’s civil money penalties will likely have no negative consequences, it may also be argued that it will not have any positive consequences and is therefore unnecessary. For example, under EMTALA, the OIG does not have to impose the maximum civil money penalty and can arguably choose to levy a smaller penalty against a hospital with more than a hundred beds. A 2016 study found that of 192 EMTALA settlement agreements from 2002-2015, the fines levied against medical facilities averaged to about $33,435.00.[104]Note that during this time period, the maximum penalty for a hospital with more than a hundred beds was $50,000.00; and one might argue that this figure evidences that the OIG was not levying the maximum penalty available. Importantly, however, this study does not clarify whether these settlement agreements were reached with hospitals with more or less than a hundred beds, or some combination thereof. It is entirely possible that the full $50,000.00 fine was levied on some, if not all, medical facilities with more than a hundred beds. Future research will have to be conducted, taking into account the capacity-based structure of the penalty, in order to better understand its implementation and effect. Until this can be done, the positive consequences, or lack thereof, of abolishing EMTALA’s capacity-based penalty will remain unknown.

Conclusion

The overall financial burdens of EMTALA are severe regardless of whether a facility complies with the statute or not. Facilities are faced with a choice to either meet the standards of EMTALA and dole out millions in uncompensated care, fail to meet the standards of EMTALA and suffer millions in penalties, or simply submit to the closure of their facility and/or emergency services to avoid financial costs altogether. It can be argued that these burdens are the price of participating in the federal Medicare program. Hence—you take the government’s money; you play by its rules. This argument is fair considering that hospitals do have a choice to not participate in the Medicare program. In practice, however, the choice to participate in the Medicare program is not much of a choice at all. As illustrated in Part I, Medicare often represents a significant portion of a facility’s funding.[105] For many urban facilities, it accounts for fifty percent of its revenue.[106] Thus, simply severing its Medicare agreement can have devastating consequences. This is likely the reason why so many facilities have either closed altogether or downgraded their services and eliminated emergency care.[107] Neither result bodes well for the uninsured population of the United States.

Unlike existing EMTALA scholarship, this Note does not put forth an argument that the statute must either be repealed or funded by Congress—though these arguments certainly have merit. Rather, this Note argues that EMTALA’s capacity-based structure for its civil money penalties is unnecessary and unfairly discriminatory against inner-city facilities who are forced to carry the brunt of this country’s uninsured population. After all, the difference of a single bed should not be the deciding factor for whether a medical facility is subject to a fine of $52,414.00 or a fine of $104,926.00. The true determination should depend on the circumstances of a given case and relevant factors including whether the patient died, whether the facility’s actions were intentional or negligent, or whether the facility has since implemented preventative measures to avoid the incident’s reoccurrence. Moreover, removing the capacity-based structure of EMTALA’s civil money penalty should not negatively impact Congress’s intention to curtail patient dumping, the severity of which this Note does not seek minimize or ignore. Nonetheless, it cannot be said that EMTALA has not unfairly burdened the medical profession by forcing it to fund a version of universal healthcare. While a more in-depth reexamination of EMTALA is needed to protect hospitals and medical facilities from its burdens, abolishing the capacity-based structure of EMTALA’s penalty will provide some relief to these facilities—specifically those inner-city hospitals who treat the majority of America’s uninsured population.


[I] Production Editor, Kentucky Law Journal, Vol. 108; J.D. Candidate, The University of Kentucky College of Law (2020); B.A., The University of Kentucky (2017).

[2] Robert H. Shmerling, First, do no harm, Harv. Health Pub.: Harv. Med. Sch. (Oct. 13, 2015, 8:31 AM), https://www.health.harvard.edu/blog/first-do-no-harm-201510138421 [https://perma.cc/6DYF-44FF].

[3] See Michael Kowalski, Applying the “Two Schools of Thought” Doctrine to the Repressed Memory Controversy, 19 J. Legal Med. 503, 505 (1998) (recognizing that “first do no harm” is a “phrase recognized as one of the most significant admonitions from the Hippocratic Oath.”). 

[4] Karen I. Treiger, Preventing Patient Dumping: Sharpening the COBRA’s Fangs, 61 N.Y.U. L. Rev. 1186, 1191–92 (1986). 

[5] Id.

[6] Id. at 1193–94.

[7] Michael A. Wolff, Charity Means Business: Medicare Reimbursement for Hospitals’ ‘Free Care’ Obligations, 25 St. Louis U. L.J. 389, 393 (1981). 

[8] Id. 

[9] Id. at 392.

[10] Fast Facts on U.S. Hospitals, 2020, Am. Hosp. Ass’n, https://www.aha.org/statistics/fast-facts-us-hospitals [https://perma.cc/99CT-LT85] (last modified Jan. 2020). 

[11] Wolff, supra note 7, at 393. 

[12] Treiger, supra note 4, at 1193–94; see generally Maria O’Brien Hylton, The Economics and Politics of Emergency Health Care for the Poor: The Patient Dumping Dilemma, 1992 BYU L. Rev. 971, 972–73 (1992) (discussing the needs of the uninsured in a healthcare system that works as a business rather than a caretaker).

[13] George J. Annas, Your Money or Your Life: ‘Dumping’ Uninsured Patients from Hospital Emergency Wards, 76 Am. J. Pub. Health 74 (1986).

[14] Id. 

[15] Will Jay Pirkey, A Shameful Practice, 39 L.A. Law. 20, 21 (2016). Importantly, it should be noted that patient dumping is not a new concern, as the term was first coined in the late 1870s. Id. at 20. It was not until the 1980s however, that the public outrage for patient dumping grew when several highly publicized patient dumps hit the press. See Beverly Cohen, Disentangling EMTALA from Medical Malpractice: Revising EMTALA’s Screening Standard to Differentiate Between Ordinary Negligence and Discriminatory Denials of Care, 82 Tul. L. Rev. 645, 650–54 (2007). When the public learned of such “cold, unconscionable disregard for human life,” concern grew, and Congress was forced to act. Thomas A. Gionis et al., The Intentional Tort of Patient Dumping: A New State Cause of Action to Address the Shortcoming of the Federal Emergency Medical Treatment and Active Labor Act (EMTALA), 52 Am. U. L. Rev. 173, 175 (2002).

[16] Gionis et al., supra note 15, at 181. 

[17] Id. at 182–84; 42 U.S.C. § 1395dd (2012). It should be noted that the standards of EMTALA garnered decades of jurisprudence over both the constitutionality of the Act and the scope of its language. See generally E. H. Morreim, EMTALA Turns 30: Unconstitutional from Birth, 28 Health. Law. 32 (2015) (discussing how EMTALA violates the Fifth Amendment’s Taking Clause); Lawrence E. Singer, Look What They’ve Done to my Law: COBRA’s Implosion, 33 Hous. L. Rev. 113, 162–63 (1996) (discussing how the language of EMTALA implicates not just intentional actions, but also negligent actions). 

[18] Decanda M. Faulk, EMTALA: The Real Deal, 16 Health Law. 10, 10 (2003). 

[19] Andrew Jay McClurg, Your Money or Your Life: Interpreting the Federal Act Against Patient Dumping, 24 Wake Forest L. Rev. 173, 175–76 (1989). 

[20] See 42 U.S.C. § 1395dd.

[21] Morreim, supra note 17, at 32. 

[22] Thomas K. Hyatt, Access to Health Care: 50 Years of Growth, but an Uncertain Future, 10 J. Health & Life Sci. L. 88, 101 (2017).

[23] E.g., Tiana Mayere Lee, An EMTALA Primer: The Impact of Changes in the Emergency Medicine Landscape on EMTALA Compliance and Enforcement, 13 Annals Health L. 145, 166–68 (2004). 

[24] 42 U.S.C. § 1395dd(d)(1).

[25] Id; 45 C.F.R. § 102.3 (2018).

[26] See id. 

[27] Jack Vihstadt, EMTALA’s Impact on Patients’ Rights in Colorado Emergency Rooms, 89 U. Colo. L. Rev. 219, 224 (2018). In fact, the Centers for Disease Control and Prevention posted a study of United States emergency room visits finding that in 2016, there were more than 145 million visits. National Center for Health Statistics: Emergency Department Visits, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/nchs/fastats/emergency-department.htm [https://perma.cc/5AG9-ADCJ] (last visited Nov. 1, 2019). Note that for 39% of these visits, roughly 56 million, the patient was seen in fewer than fifteen minutes, which likely means the patient was not critically injured. Id.

[28] 42 U.S.C. § 1395cc(l) (2012); Hyatt, supra note 22, at 101. 

[29] Hyatt, supra note 22, at 101.  

[30] Jeffrey A. Singer, No Discharge: Medicaid and EMTALA, 37 Reg. 52, 56–57 (2014). 

[31] 42 U.S.C. § 1395dd(a)–(c) (2011). 

[32] § 1395dd(a). EMTALA provides a definition of “emergency medical condition,” stating that it is a condition that the “absence of immediate medical attention could reasonably be expected to result in . . . placing the health of the individual . . . in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part[.]” § 1395dd(e)(1).

[33] § 1395dd(b)(1)(A). Currently there exists a circuit split on what constitutes “stabilizing” the patient. Specifically, the Fourth and Ninth Circuit Courts view this requirement met when the patient is admitted to the hospital as an inpatient. Bryan v. Rectors, 95 F.3d 349, 352 (4th Cir. 1996), Bryant v. Adventist Health Sys./West, 289 F.3d 1162, 1164 (9th Cir. 2002). In contrast, the Sixth Circuit reasons that the frequent use of the term “emergency room” in EMTALA was a reference to Congress’s desire to ensure patients received emergency care regardless of admittance or not. Thornton v. Southwest Detroit Hosp., 895 F.2d 1131, 1135 (6th Cir. 1990). 

[34] 42 U.S.C. § 1395dd(b)(1)(B). 

[35] § 1395dd(b)(3). While it may not be evident by reading the statutes alone – the costs of meeting EMTALA’s standards are significant. There does, however, exist a small saving grace for hospitals – especially rural hospitals with limited resources. Specifically, EMTALA provides that the required treatment must only be “within the capability of the hospital’s emergency department,” thus protecting rural hospitals that might be unable to match the capabilities of an urban facility. § 1395dd(g). Scholars have pointed to this language as helpful to rural hospitals that cannot match the capabilities of an urban facility. See, e.g., Diane S. Mackey, The Emergency Medical Treatment and Active Labor Act: An Act Undergoing Judicial Development, 19 U. Ark. Little Rock L.J. 465, 478 (1997). Of course, however, if a hospital cannot provide the necessary treatment, it must foot the financial burden of transferring the patient to a facility that can. See id at 470.

[36] E. H. Morreim, EMTALA: Medicare’s Unconstitutional Conditions on Hospitals, 43 Hastings Const. L.Q. 61, 62 n.5 (2015).

[37] 42 C.F.R. § 489.24(f) (2013).

[38] U.S. Department of Health and Human Services, Medicare Medicaid State Operations Manual, Appendix V, at 36 (1998). By this language, the screening requirement of EMTALA is satisfied simply because the individual met with a physician; depending on the circumstances, further tests and evaluations may be required to determine with reasonable certainty if there is an emergency medical condition. Wendi Campbell Rogaliner et al., Health Care Providers Balance Patient Rights and Law Enforcement Authority in the Hospital Setting, 11 J. Health & Life Sci. L. 42, 52 (2018).

[39] Sara Rosenbaum & Brian Kamoie, Finding a Way Through the Hospital Door: The Role of EMTALA in Public Health Emergencies, 31 J. L. Med. & Ethics 590, 592 (2003).

[40] See Hyatt, supra note 22, at 101.

[41] E.g., James Pramuk, ‘Medicare-for-all’ vs. the public option: How health care could shape the Democratic primary race to take on Trump in the 2020 election, CNBC (Mar. 10, 2019, 8:00 AM), https://www.cnbc.com/2019/03/06/2020-democratic-primary-candidates-weigh-medicare-for-all-public-option.html [https://perma.cc/3CML-KBB5].

[41] 42 U.S.C.A. § 1395dd(d) (2012).

[42] By enacting EMTALA, the statute became the “de facto” healthcare insurance for the uninsured. See EMTALA Fact Sheet, Am. Coll. Emergency Physicians,https://www.acep.org/life-as-a-physician/ethics--legal/emtala/emtala-fact-sheet/ [https://perma.cc/9YG6-2DPN] (last visited Mar. 15, 2019).

[43] See Laura D. Hermer, The Scapegoat: EMTALA and Emergency Department Overcrowding, 14 J.L. & Pol’y 695, 701 (2006).

[44] 42 U.S.C. § 1395dd(d) (2011).

[45] See generally Shannon Fruth, Medical Repatriation: The Intersection of Mandated Emergency Care, Immigration Consequences, and International Obligations, 36 J. Legal Med. 45, 51 (2015). See also 42 U.S.C.A. § 1395dd ( there is no provision dictating that the penalties under EMTALA are exclusive). A hospital can be fined by the OIG, sued by a neighboring hospital, sued by a private plaintiff, and lose its Medicare funding all at once depending on the circumstances. 

[46] Michael J. Frank, Tailoring EMTALA Better Protect the Indigent: The Supreme Court Precludes One Method of Salvaging a Statute Gone Awry, 3 DePaul J. Health Care L. 195, 218 (2000) (citations omitted). 

[47] Christopher J. Young, Emergency! Says Who?: Analysis of the Legal Issues Concerning Managed Care and Emergency Medical Services, 13 J. Contemp. Health L. & Pol’y 553, 562–63 (1997).

[48] Morreim, supra note 17, at 38.

[49] Unsurprisingly, those hospitals where Medicare represents roughly fifty-five percent of its revenue are more likely to be urban facilities. Mark R. Whitmore & J. Scott Anderson, Decisions of the Supreme Court and DHHS Continue to Expand Hospital Liability Under EMTALA, 11 Health Law. 14, 14 (1999).

[50] 42 U.S.C. § 1395dd(d)(1)(B) (2011).

[51] Id. 

[52] Sophie Terp et al., Individual Physician Penalties Resulting From Violation of Emergency Medical Treatment and Labor Act: A Review of Office of the Inspector General Patient Dumping Settlements, 2002–2015, 24 Acad. Emergency Med. 442, 442 (2017).

[53] Id. at 444 (providing a breakdown of the eight penalized physicians by chart).

[54] Id. 

[55] Id. While this particular penalty is levied against individual physicians, it still poses a financial burden to the hospital the physician works for. For instance, what if a physician violates EMTALA, but he or she is under contract with their hospital? EMTALA could force a hospital into litigation with its doctors and raise recruitment costs to replace violating doctors. Thus, this individual penalty has likely “as applied” costs to the hospitals.

[56] 42 U.S.C. § 1395dd(d)(2)(A) (2018); See also Julie A. Braun et al., Recent Developments in Medicine and Law, 36 Tort & Ins. L.J. 463, 469–70 (2001). 

[57] Young, supra note 45, at 563.

[58] See 42 U.S.C.A. § 1395dd(f) (2018); See also Elizabeth Y. McCuskey, Body of Preemption: Health Law Traditions and the Presumption Against Preemption, 89 Temp. L. Rev. 95, 129 (2016). 

[59] See Julia Ai, Does EMTALA Apply to Inpatients Located Anywhere in a Hospital?, 32 Rutgers L.J. 549, 571 (2001) (citing Summers v. Baptist Med. Ctr. Arkadelphia, 91 F.3d 1132, 1137 (8th Cir. 1996)).

[60] Alicia K. Dowdy et al., The Anatomy of EMTALA: A Litigator’s Guide, 27 St. Mary’s L.J. 463, 512 (1996).

[61] Ai, supra note 57, at 572. 

[62] Dowdy et al., supra note 58, at 468–69.

[63] Ai, supra note 57, at 572.

[64] 42 U.S.C. § 1395dd(d)(2)(B) (2018).

[65] See Frank, supra 44, at 235. 

[66] 42 U.S.C. § 1395dd(d)(2)(C) (2018); See also Kim C. Stanger, Private Lawsuits Under EMTALA, 12 Health Law. 27, 33 (2000).

[67]After working two years at a state medical facility, I witnessed firsthand how hospitals work to keep their relationships smooth and cooperative for the sake of their patients.

[68] 42 U.S.C.A. § 1395dd(d)(1).

[69] Id. 

[70] Importantly, EMTALA’s civil money penalties are per violation, and not per patient. Robert A. Bitterman, Feds Increase EMTALA Penalties against Physicians and Hospitals, Emergency Physicians Monthly (Oct. 17, 2017), http://epmonthly.com/article/feds-increase-emtala-penalties-physicians-hospitals/ [https://perma.cc/C76V-JQSU]. This is significant because multiple EMTALA violations can occur with a single patient. Id. 

[71] Brian Kamoie, EMTALA: Dedicating an Emergency Department Near You, 37 J. Health L. 41, 45 (2004); See also Charlotte Fillenwarth, Note, Beyond the Emergency Room Doors: Rejecting Patient Admittance as Satisfaction of Hospital Obligations Under EMTALA, 11 Ind. Health L. Rev. 791, 805 (2014) (“. . . the CMS may terminate the hospital’s Medicare agreement and the OIG determines whether to impose civil penalties.”) (emphasis added).

[72] Kamoie, supra note 71, at 45. 

[73] Terp, supra note 52, at 444.

[74] See id.See also U.S. Gov’t Accountability Off., GAO-01-747, Emergency Care: EMTALA Implementation and Enforcement Issues (2001).

[75] Annual Civil Monetary Penalties Inflation Adjustment, Fed. Reg. (Jan. 30, 2017), https://www.federalregister.gov/documents/2017/02/03/2017-02300/annual-civil-monetary-penalties-inflation-adjustment [https://perma.cc/7K7Q-8HFS]. Importantly, it should be noted that the 2017 inflation adjustment to EMTALA’s civil money penalties is technically no longer current. The adjustment was made pursuant to the Federal Civil Penalties Inflation Adjustment Act, signed into law by Barack Obama on November 2, 2015. Civil Monetary Penalties (Annual Adjustments), CMS.gov (Feb. 12, 2019 7:20 AM), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Civil-Monetary-Penalties-Annual-Adjustments [https://perma.cc/R6EF-B3EG]. Under this Act, agencies are required to continuously update their penalties for inflation annuallyId. Thus, in 2018 EMTALA’s civil money penalty was adjusted again to be a $106,965.00 penalty if the facility houses more than 100 beds and $53,484 if it houses less than 100 beds. Id. These numbers are nominally different from the 2017 inflation adjustment, which more than doubled EMTALA’s original penalties in a single year. The doubling effect of the 2017 adjustment is why only the 2017 numbers are discussed.

[76] Id. 

[77] 45 C.F.R. § 102.3 (2018). These numbers took effect February 3, 2017 unless the alleged violation occurred prior to November 2, 2015 or the penalty was assessed prior to September 6, 2016, in which case the prior figures were still in effect. Annual Civil Monetary Penalties Inflation Adjustmentsupra note 75.

[78] Terp, supra note 52, at 445. 

[79] E.g., Svetlana Lebedinski, EMTALA: Treatment of Undocumented Aliens and the Financial Burden it Places on Hospitals, 7 J. L. Society 146, 154–55 (2005). Moreover, with any hospital closure, neighboring hospitals become burdened with more patients and overcrowded emergency rooms, which causes the neighboring hospitals to be in danger of closure. See Vivian L. Regehr, Please Resuscitate! How Financial Solutions May Breathe Life into EMTALA, 30 U. La Verne L. Rev. 180, 187–88 (2008).

[80] E.g., Lebedinski, supra note 79, at 155.

[81]Edward Berchick, Who are the Uninsured?, U.S. Census Bureau (Sept. 14, 2017), https://www.census.gov/newsroom/blogs/random-samplings/2017/09/who_are_the_uninsure.html [https://perma.cc/4V3G-QE9U]. This number increased to twenty-eight million in 2017. Edward Berchick, Who Are the Uninsured?, U.S. Census Bureau (Sept. 12, 2018), https://www.census.gov/library/stories/2018/09/who-are-the-uninsured.html [https://perma.cc/BL48-CBB2].

[82] See Berchick (Sept. 14, 2017), supra note 81.  

[83] Ann M. Burkhart, The Constitutional Underpinnings of Homelessness, 40 Hous. L. Rev. 211, 275 (2003).

[84] See id. at 274–75 (“Registration requirements disproportionately affect the homeless in at least three ways. First, the cost and effort to register generally are greater for the poor than for those who are more affluent, whether due to the necessity for a bus ride or other inconvenience of the registration time or place. Second, only nine states’ election laws expressly enfranchise the homeless. In those jurisdictions that do not, registration officials often refuse a homeless person the right to register. In some cases, election registrars prevent homeless persons from voting even if they have registered. Finally, many states check on the continued residence of registered voters by mailed notice, and any addressee who does not respond to the notice is purged from the registration list. This practice obviously presents greater difficulties for the homeless than for those with a home. The cumulative impact of these obstacles is as impossible to determine as determining the exact number of homeless persons.” (internal footnotes omitted)).

[85] E.g., Rachana Pradhan, Number of uninsured Americans rises for the first time since Obamacare, POLITICO (Sept. 10, 2019, 10:59 AM), https://www.politico.com/story/2019/09/10/health-insurance-rate-1719381 [https://perma.cc/4ARR-Y3VG].

[86] See id. 

[87] Committee on Health Care for Homeless People, Homelessness, Health, and Human Needs 79–80 (1988).

[88] Ruirui Sun et al., Characteristics of Homeless Individuals Using Emergency Department Services in 2014, Healthcare Cost & Utilization Project (Oct. 17, 2017), https://www.hcup-us.ahrq.gov/reports/statbriefs/sb229-Homeless-ED-Visits-2014.pdf [https://perma.cc/ZL97-RL5L].

[89] Niall McCarthy, The U.S. Cities with the Most Homeless People in 2018, Forbes (Dec. 20, 2018, 7:00 AM), https://www.forbes.com/sites/niallmccarthy/2018/12/20/the-u-s-cities-with-the-most-homeless-people-in-2018-infographic/#517363b31178 [https://perma.cc/28NW-KX97].

[90] Florida Passes New York to Become the Nation’s Third Most Populous State, Census Bureau Reports, U.S. Census Bureau (Dec. 23, 2014), https://www.census.gov/newsroom/press-releases/2014/cb14-232.html [https://perma.cc/BMD9-322S].

[91] McCarthy, supra note 89. 

[92] Marian White, The Top 10 Largest U.S. Cities by Population, Moving Tips (Mar. 16, 2018), https://www.moving.com/tips/the-top-10-largest-us-cities-by-population/ [https://perma.cc/P8AP-U9D3].

[93] See 50 Largest Hospitals in America, Becker’s Hospital Rev. (Oct. 26, 2010), https://www.beckershospitalreview.com/lists/50-largest-hospitals-in-america.html [https://perma.cc/RR73-WSRH]; see also Kelly Gooch, 25 Largest Hospitals in America, Becker’s Hospital Rev. (Jan. 18, 2017), https://www.beckershospitalreview.com/lists/25-largest-hospitals-in-americajan-18.html [https://perma.cc/6D2V-7ZVH].

[94] Gooch, supra note 92. Note that these three states are among the five states with the largest homeless populations. 

[95] Id. 

[96] See 50 Largest Hospitals in Americasupra note 93. 

[97] Id. 

[98]62 acute care hospitals in New York City, Becker’s Hospital Rev. (July 15, 2015), https://www.beckershospitalreview.com/lists/62-acute-care-hospitals-in-new-york-city.html [https://perma.cc/EQZ7-8AX5].

[99] See, e.g., E.H. Morreim, Dumping the “Anti-Dumping” Law: Why EMTALA is (Largely) Unconstitutional and Why it Matters, 15 Minn. J.L. Sci. & Tech. 211 (2014). 

[100] See Tristan Dollinger, America’s Unraveling Safety Net: EMTALA’s Effect on Emergency Departments, Problems and Solutions, 98 Marq. L. Rev. 1759, 1761, 1771–72 (2015). 

[101] See infra Part I.

[102] Civil Monetary Penalties (Annual Adjustments)supra note 75. 

[103] See, e.g., Victoria K. Perez, EMTALA: Protecting Patients First by not Deferring to the Final Regulations, 4 Seton Hall Circuit Rev. 149, 160 (2007); George P. Smith, II, The Elderly and Patient Dumping, 73 Fla. B.J. 85–86 (1999); Frank supra note 46, at 218.

[104] Nadia Zuabi et al., Emergency Medical Treatment and Labor Act (EMTALA) 2002-15: Review of Office of Inspector General Patient Dumping Settlements, 17 West J. Emerg. Med. 245, 247 (2016).

[105] See infra Part I. 

[106] Whitmore & Anderson, supra note 49, at 14. 

[107] Hermer, supra note 43; see also David A. Hyman, Patient Dumping and EMTALA: Past Imperfect/Future Shock, 8 Health Matrix: J. of Law-Medicine 29, 50–52 (1998); Singer, supra note 30, at 57. 

Advancing Intelligence and Global Society: International Law’s Role in Governing the Advance of Artificial Intelligence

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Lesley Nash[I] 

Introduction

Advancing technology changes the fabric of global society, from electricity to the rise of social media, yet law has always struggled to keep pace with such technological advances,[2] and this problem has accelerated with the increased pace of technological change in the twentieth and twenty-first centuries.[3] Although modern society is faced with a multitude of issues springing from new technologies, law and governance structures have lagged[4] while the technologies themselves have advanced.[5] This discrepancy between technology and law is particularly glaring in the artificial intelligence (“AI”) field. Though the solution to creating “true” artificial general intelligence is still elusive,[6] “weak” forms of the technology are altering the fabric of society, from social media[7] to the orchestration of war.[8] These technological advances remake everyday existence, yet global regulatory functions are not sufficiently robust to oversee these changes.

The fact that international law has not yet exhibited meaningful regulatory control over artificial intelligence technology does not mean that itcannot. International law offers a structure of governance over issues that are too broad for unilateral state regulation, or that implicate international interests.[9] Although international law has often been denigrated as weak,[10] it has great potential to offer solutions for global problems that are too large for states to tackle alone. This note seeks to unveil the benefits of using international law to approach the problems and potential of AI as well as suggest a possible method of doing so that can increase regulation and aid in the development and advancement of safe AI technology.

Part I will provide a succinct overview of the current state of artificial intelligence, including the various types of autonomous states of technologies. Section A will include a discussion of the definitions of relevant technologies as well as their modern uses. Section B will touch briefly on several examples of the legal and regulatory issues that have arisen from this technological paradigm. Section A of Part II will discuss the current state of international legal and regulatory structures, while Section B will consider how international law might provide regulation and oversight of this advancing technological sector. Section C of Part II will examine several national and international policies regulating artificial intelligence and what lessons can be drawn from existing structures. Section A of Part III will then draw from institutions and structures offered in Part II, Section B, as well as best practices considered in Section C. Here, I will argue that international law offers the best path forward to functional oversight, regulation, and promotion of advancing AI technologies, and will propose a framework for such an international regulatory structure. Section B of Part III will briefly answer questions related to why international law is not already in use. Finally, Part IV will conclude with a few remarks about both the potential and danger inherent in advancing AI technology and reiterate the call for international regulation and oversight.

I.  Artificial Intelligence in the Modern World

A.  Understanding Artificial Intelligence: Definitions and Current State of Technology

AI is ubiquitous in popular culture,[11] but the reality of the technology is much different than popular imaginings. AI can be divided into two general categories: “weak” or “specific” AI and “strong” or “general” AI.[12] “Weak” or “specific” AI is an application or system with a specific function, in which the AI often “outperform[s] even the most expert humans.”[13] “Strong” or “general” AI (often referred to as artificial general intelligence, or AGI), on the other hand, is more akin to the AI of pop culture, where the program or system is not merely “specifically” gifted but rather achieves “human-level” performance across a spectrum of individual challenges that would allow the AI to “think.”[14] Though AGI is not yet realized, researchers have made progress on several fronts related to general intelligence, including visual analysis, object recognition, and behavioral interactions.[15] Specific intelligences, on the other hand, are common, operating as systems that are designed to follow a “special-purpose algorithm,” which may render the program an expert search engine[16] or chess player,[17] but incapable of harnessing human ‘common sense.’

A discussion of AI necessitates one of automation. Paul Scharre notes three degrees of autonomy that are helpful when discussing AI.[18] First, semiautonomous operations are those in which “the machine performs a task and then waits for a human user to take an action before continuing;”[19] or “human in the loop” processes.[20] Second, there are supervised autonomous operations in which, once in operation, “the machine can sense, decide, and act on its own, but a human observer can . . . intervene;” or “human on the loop” processes.[21] Finally, there are fully autonomous operations, in which “systems sense, decide, and act entirely without human intervention;” or “human out of the loop” processes.[22] Programs often move among these types of processes when completing a task and they can be conceived of as a continuum: as programs grow more sophisticated, they require less human intervention and oversight to complete tasks.[23]

There is also a difference between automatic, automated, and autonomous intelligence in machines. Automatic programs are simple, highly predictable, and display no decision-making qualities.[24] Automated programs are more complex, rule-based systems that may consider a range of variables before acting.[25] Autonomous programs are sophisticated, goal-oriented, and may be considerably less predictable in their processes.[26] Like process levels, intelligence levels operate on a spectrum, with intelligence growing as a program moves down the continuum from automatic to autonomous.[27] Autonomous programs do not “think;” if their processes are opaque it is because there is not a simple connection between input and output as there is in an automatic program; rather, autonomous, “goal-oriented” systems assimilate a wide variety of input and produce an output through a process that may be unintelligible to human observers.[28]

B.  AI Interactions with the Modern World: Influence, Benefits, and Dangers

Understanding AI as more than the humanoid robot or omnipotent mastermind enables a deeper understanding of the ways in which AI technology already interacts with and influences global society, as well as of the reasons why greater regulation and oversight is beneficial. AI operates across a multitude of sectors, influencing fields from social media to the global economy and everything in between. The following examples highlight the benefits and the dangers of continually advancing, and often under- or unregulated artificial intelligence technologies.

The first example occurred on May 6, 2010, when the Dow Jones industrial average careened wildly, losing nearly ten percent of its value in just under fifteen minutes and then, within a half hour, rebounded it its prior level.[29] Following investigations into what became known as the “Flash Crash,” it became clear that the crisis, which was described by traders as “horrifying,”[30] had been set off by a single trading algorithm programmed to sell off a specific type of contract.[31] These contracts were in turn purchased by specifically programmed purchasing algorithms; the competing algorithms entered into a fast-paced trading race, in which the pace of trade triggered other algorithms to offload their contracts as well, interpreting the fast pace of trading as high liquidity.[32] Although stability was soon restored, at the peak of the crisis, “a trillion dollars had been wiped off the market” and investors around the world were shaken.[33]

The Flash Crash was not the result of a rogue algorithm or of a weak AI breaking away from programming. It was an example of a weak AI following its programming to the letter in spite of the catastrophic effects of doing so. The Flash Crash was caused by human programmers’ failure to understand the effects of their algorithm following its directive to its logical conclusion.[34] While the use of algorithmic programming granted benefits in the form of higher trade volume, the potential danger of unforeseen programming consequences clearly played out.

Another illustrative example is the infamous case of Stuxnet malware, which was created to compromise the Siemens machines controlling centrifuges in Iran’s Natanz nuclear facility.[35] Though the facility did not suffer catastrophic damage from Stuxnet, the attacks did reduce the lifetime of the centrifuges, as well as undermining confidence in the security of the Iranian facility.[36] In addition to these long-term deleterious effects of the program, Stuxnet also ushered in a new era of cyber warfare, hailed as the world’s “first military grade cyber weapon.”[37]

Stuxnet heralded a sea change in malware; the virus was not contained in the Natanz facility but spread globally, likely transferred by laptops or USB drives infected with the virus.[38] Though Stuxnet was designed to attack a specific make of Siemens controller, its presence on the internet affords hackers and programmers with access to the virus’ blueprints an opportunity to dismantle, alter, and learn from the way Stuxnet operates.[39] Concern over such cyberattacks has only increased since this first major international incident occurred.[40]

These cases point to a sector of technology and innovation that is advancing—or, perhaps, has advanced—past the point of legal and regulatory control.[41] This note offers these instances as examples of just a few of the diverse situations in which advancing AI and automation technology would benefit from a system of oversight and regulation.

II.  International Law: Promises, Failings, and Potential 

A.  Why International Law?

The rise and increased visibility of the modern international legal system developed in the post-World War II and Cold War eras.[42] International law is “the legal order … meant to structure the interaction between entities participating in and shaping international relations.”[43] Some scholars have argued that international law is not “law,” per se[44] given its lack of authority and enforcement structures,[45] but others have noted that “almost all nations observe almost all principles of international law … almost all of the time.”[46] International law can help preserve peace and security, manage interstate social and economic disputes, and protect the interests of the international community as a whole.[47]

AI is a problem—like the global arms race or climate change—that implicates all of global society.[48] Whether operating in financial markets, conflict situations, or social media and data-gathering, advancing AI crosses and will continue to cross national boundaries; as Erdélyi and Goldsmith suggest, purely national responses to this rising challenge may conflict and create more problems than they solve.[49] Furthermore, isolated national or corporate attempts to solve the emerging research and regulatory problems created by AI may be hasty, ignoring investments in safety to be first to reach a benchmark in machine intelligence.[50] Advancing AI creates an opportunity for international law to step into a gap that national law is not sufficient to fill.

The problem arises from the fact that international law is not law in the traditional sense of national law in which the sovereign creates the system of laws by which its citizens abide.[51] In the international legal systems, the states engaging in the system are themselves sovereign.[52] The pertinent questions then become: In what circumstances do states comply with international law and international obligations, and how can this general compliance be used to create an international structure of governance and oversight for advancing AI technology

B.  Under What Circumstance Do States Adhere to International Law? 

Academics and international law practitioners have long questioned why states seem to mostly follow international law. This law, which is composed not only of the formal treaties between states but also of more the general principles of customary international law,[53] has been able to function more or less effectively for centuries, despite its lack of total enforcement power over sovereign states. Though the debates behind why states recognize international law are intense and ongoing,[54] of more particular interest to this examination are the following questions: Under what circumstances do states follow international law, and how can this knowledge be applied to the creation of an international governance structure for advancing AI?

Despite arguments that states are not obligated to follow international law,[55] there are more instances of states complying with international laws than not.[56] The commonality in many of these instances may be, rather than some sense of morality or complicated philosophical principle, the less benign and more realist idea of state self-interest.[57] States, though they regularly come together to work toward some common purpose, are individual actors that must shape their own policy considerations towards international issues.[58] The goal for international law is to provide regimes that states can follow that achieve international legal goals while also providing an appealing choice to state self-interest. Such a choice to follow international law can be seen in the disarmament treaties and in international cooperation on nuclear technology that began in the 1950s, and many of these arrangements continue to have a high level of state adherence today.[59]

As previously noted, international law is most useful in circumstances in which one state alone is not capable of managing a problem, or when the interests of the international community as a whole are implicated.[60] Although adherence is not perfect, existential world crises have seen a majority of involved states come to the table and negotiate an international solution through the auspices of international law.[61] Where advancing AI technology does not neatly align with existing international norms, it is necessary to create new structures of governance;[62] which, like those governing arms proliferation, nuclear weapons, and climate change, advance an international policy goal and offer states benefits they would not be able to gain on their own. Jana von Stein notes that this type of mechanism, combining “the proverbial carrots and sticks; technical and financial assistance; [and] tying good behavior to a particular identity” can be quite effective in holding states to compliance with international law and institutions.[63] This research encourages a self-interested view of state compliance, one in which any new international law regime will need to offer states an incentive to comply with its norms.[64]

Examples from other crises clearly show that the mere existence of an existential threat to international society is not necessarily enough to compel full compliance with international law and norms.[65] It is therefore necessary to make compliance with any international regulatory scheme more attractive to states. Increasing the benefits of compliance can be done in two parallel ways. First, create a system where compliance itself is valuable for states’ reputations.[66] Where states are seen as upholding their international obligations and complying with international laws and norms, other states may be more willing to enter into future agreements, grant more generous concessions in future negotiations, or cooperate on economic and regulatory projects.[67]

Second, benefits to a state’s self-interest arise when compliance with international law grants the state some type of tangible gain. For example, although membership in the World Trade Organization (WTO) requires some concessions, member states are also able to access preferential trading with partners.[68] Creating a regulatory system that engenders state adherence around AI policy must keep three goals in mind: (1) provide a solution to a problem implicating the interests of the international community; (2) create a structure in which adherence to international norms creates a virtuous compliance cycle; and (3) incentivize states to comply with the governance structure’s policies through tangible gains given to member states.

C.  Regulatory Efforts, Recommendations, and Their Messages

Despite the lack of an overarching regulatory structure, there have been various state, multi-national, and non-governmental attempts to introduce coherence and regulatory oversight to AI research and use. NGOs, expert agencies, and even the United Nations have urged greater oversight of AI advances, while several states have also released plans for the advancement of AI technology. Multiple NGOs and other non-state actors have spoken out in favor of increasing regulation and oversight of AI research and use. Some include calls for increased regulation, while others offer paths forward or designs to emulate.[69] These are not merely specialist organizations, but rather some of the most well-known and integrated NGOs: in 2015, the United Nations Interregional Crime and Justice Research Institute (UNICRI) launched its Centre for Artificial Intelligence and Robotics, which was created to “educate and inform stakeholders . . . [and] progress discussion on robotics and artificial intelligence governance.”[70]

Law and AI experts have called for international regulation and oversight of AI technology and use. One highly relevant proposal is creation of a new international organization to encourage policy discussion and eventual regulation of AI-related matters, which, though beginning as a voluntary advising body, could gain enforcement and oversight powers.[71] One such body, the Center for the Governance of AI, is active at the international level, speaking to non-governmental research groups as well as national governments about the possible dangers and benefits of AI, as well as of policy paths forward to minimize the risks and establish a structure of development and governance for AI technology.[72]

Much has also been proposed regarding the regulation of autonomous weapons; sensible, given their immense potential harm the increasing use of semi-autonomous[73] and autonomous weapons[74] in the field. In 2012, the Campaign to Stop Killer Robots was founded.[75] This campaign, organized to stop the use of fully autonomous lethal weapons and maintain human control over the use of force, is supported by nearly 120 national, regional, and international NGOs.[76] Others have called for a more “vibrant, measured, and mature discussion of the relevant legal issues,”[77]arguing that the law of armed conflict will be shaped by the use of such autonomous weapons[78] and that a ban of such systems would ignore the military practicalities and political complexities that are already tied into states developing autonomous weapons systems.[79]

Several national and supranational actors have also made steps forward in AI regulation and oversight. In June 2018, the European Union (“EU”) named 52 experts to its High Level Expert Group on Artificial Intelligence, which aims to produce policy recommendations on social, political, economic, and ethical issues related to AI, as well as balance economic competitiveness concerns tied to transparency, data-protection, and fairness.[80] In December 2018, the group published its draft AI Ethics Guidelines, which aims to “maximize the benefits of AI while minimising its risks” by “ensuring an ‘ethical purpose’ . . . and [being] technically robust.”[81]

Over twenty-five states have announced their AI strategies or have published plans for future strategies, including the US, Russia, China, and India.[82] Many plans focus on maintaining a competitive edge in the emerging AI market, although several also consider the ethical and safety elements of advancing AI.[83] One strategy notable in its attention to safe progress is the US Department of Defense’s (DoD) attitude towards the development of autonomous weapons systems, which might be extrapolated to encompass advanced AI research.[84]

The DoD’s Directive 3000.09 (“Autonomy in Weapons Systems”) creates three classes of weapons systems that are given a “green light” for development and use.[85] For proposed systems that would use autonomy or intelligence outside of these categories, the system issues a “yellow light,” requiring review before any further development of the technology, and then a second review before field use of the system.[86] Although this policy is created specifically for autonomous and intelligent weapons systems, its stated goal of “[minimizing] the probability and consequences of failures in autonomous [systems]”[87] is one that can easily be transferred to AI, creating a system of checks and review that would allow greater investment in safety in and control over the advancement of AI.[88]

Although none of these proposals are truly international in scope, many of them offer strong elements that could be incorporated into an international regulatory regime, including the American policy discussed above,[89] or the Centre for the Governance of AI’s proposed research and development guidelines.[90] Drawing from best practices of states and NGOs would be beneficial to the proposed regulatory body, and would allow it to begin with a strong foundation.

III.  Global Governance of AI: Oversight, Regulation, and Promotion 

A.  The Regulatory Promise and Potential of International Law

International law has most relevance where national law is not sufficient to protect the interests of global society; the advancement of AI presents an opportunity for greater robustness of international regulatory structures.[91] The growth of AI technology calls for a response from international society. International law and institutions, calling upon both states’ tendencies to comply with international law when doing so is seen as virtuous[92] and upon states’ individual self-interest, may be able to create a regulatory regime that is attractive enough to compel adherence from a majority of state players.[93] Such a regime would not seek to halt research on and development of AI, but to pursue such research and development safely and intentionally.[94]

The most traditional method of international cooperation is, as recommended in multiple other publications,[95] the creation of an international treaty. This proposal offers a more incentivized approach: the creation of an international body of collaborating scientists, researchers, and experts in the field— both civilian and governmental— whose research and collaborative efforts are available only to parties to the treaty. A similar body has been used in response to a broad range of “global catastrophic risks” or “existential risks,”[96] proposing a regulatory body controlled by a group of experts to govern member states of previously created treaties.[97] This body of experts should include experts from civil society as well as government representatives, to promote transparency in regulation and oversight.[98] Leveraging the potential international pitfalls of unregulated AI, the treaty body could create a regime in which a state’s refusal to sign and ratify the new AI treaty and become part of the regulatory institution is seen as damaging to its reputation.[99] Encouraging consideration of the “global catastrophic risks” that might occur should state refuse to comply could also be a motivator.

The combination of these recommendations is the creation of a new international treaty body, overseen by the United Nations (possibly drawing from UNICRI, which already has subject-matter expertise on AI)[100] paired with an expert body or advisory panel serving the members of the new treaty. While the proposed treaty would provide general guidelines for member states on research and development of advancing AI, the expert body could provide case-by-case recommendations on new research and controversial development proposals. The body could also develop best practices and contribute to important advances through collaborative research.[101] Ideally, the panel would also represent the cutting edge of AI research and development, with ideas shared freely among the body’s members.

While states may be less immediately open to joining, many AI experts have already expressed concern about the direction and speed of research, calling for guidance and even delay of certain strands of AI research as well as for more focus on developing AI safely and ethically[102] and would likely be open to joining a body of this sort. One way to make this body more attractive is to encourage the membership and active participation of expert groups such as the American Association for AI and the Machine Intelligence Research Institute (“MIRI”)[103] and individual experts such as Max Tegmark[104] and Nick Bostrom,[105] all of whom have expressed concerns.[106] Participation by these experts in the proposed panel could further incentivize states to join, in order to gain access to their research and collaborative technological development.

States are more likely to adhere to international law when doing so promotes some international interest and offers incentives to states’ self-interest. By offering an answer to the international challenges posed by the expansion of AI across all sectors, including financial, social, and military, the proposed treaty and body of experts would protect the interests of the international community. Further, by providing access to an international, collaborative body of experts that not only provides best practices recommendations and oversights but also to shared information, pooled resources, and joint research, the recommended treaty would offer states and other organizations tangible incentives to both join and adhere to the proposed convention.

A treaty and expert regulatory body could also help control AI advances in the future. While this discussion has focused mainly on weak AI, autonomy, and the possibility of creating AGI in the near to middle-term future, many experts are more concerned about the advances that might follow; namely, superintelligence,[107] which is “any intellect that greatly exceeds the cognitive performance of humans in virtually all domains of interest.”[108] Creating a regulatory body in the present will ensure there are safeguards in place in the event that AI technology reaches such heights, possibly preventing the disastrous consequences that might result.[109] These technological advances have not yet arrived, but they are on the horizon,[110] and establishing an international oversight body early on could prevent more wicked challenges down the road. 

B.  If International Law Is the Answer, Why Is It Not Currently in Use?

 If the potential gains from the international regulation and cooperation on advancing AI are so immense, why hasn’t an international solution yet been accepted? There are two arguments, the first of which is principled and second of which is more pragmatic. First, international law lacks the capacity to properly regulate and oversee a field as rapidly advancing as AI.[111] Second, many powerful states are simply disinterested in international regulation and oversight of advancing AI technology.[112]

First, some scholars argue that international law cannot create binding legal requirements.[113] Without an overarching authority or enforcement mechanism, international law would lack the ability to enforce any new AI regime it attempted to impose, and thus would not be the preferred method of regulation. This argument can be answered by considering that international law, though lacking traditional enforcement power, does have other means, such as international interest, incentives to states, and reputational value to encourage compliance.[114]

Second, international regulation might not be in the best interest of all states. AI is a “dual-use” technology,[115] and though few are opposed to the advancement of peaceful uses of AI,[116] there has been opposition to advancing military uses.[117] Many states, however, have already invested heavily in AI’s military potential[118] and prefer a regime governed by national regulation. This “race dynamic,” where actors refuse to cooperate out of fear that they will not achieve a new technology first,[119] emerges in recent research on public feelings about AI: in a January 2019 poll, more American respondents answered that they believed advancing AI could do more harm than good, yet there was uncertainty as to who, if anyone, should control that advancement.[120] There is a related concern that if other states are developing unsavory advances for AI, your state should as well,[121] regardless of any regulatory structure.[122]

This second set of arguments, however, merely repeats several underlying reasons for regulating AI in the first place, and can be answered by the promise inherent in an international regulatory structure that, through a series of incentives and reputational elements,[123] can gain a level of adherence high enough to undermine bad actors. Despite its flaws, international law still offers the best opportunity for true oversight and guidance of advancing AI.

IV.  Conclusion

At the conclusion of his book Superintelligence, Nick Bostrom writes:

Before the prospect of an intelligence explosion, we humans are like small children playing with a bomb. Such is the mismatch between the power of our plaything and the immaturity of our conduct… A sensible thing to do would be to put it down gently, quickly back out of the room, and contact the nearest adult. Yet . . . some little idiot is bound to press the ignite button just to see what happens. Nor can we attain safety by running away . . . nor is there a grownup in sight.[124]

 Human society has held the nuclear bomb in its hands for well over fifty years,[125] and this new bomb is no different. Although there are dangers, we are equipped to handle them, provided regulatory oversight is imposed now rather than after the ignite button has been pressed. International governance offers an answer to the looming promises and pitfalls of advancing AI. The proposed regime could provide guidance and safety while also promoting a collaborative spirit that could see AI technology advance slightly more swiftly and much more safely.[126] An international body focused on safe development and use of AI would promote international welfare, search out solutions that work best, not first,[127] and ensure that global society benefits from the promise of AI rather than suffers from the dangers.

___________________________________________________

[I] J.D. expected 2020, University of Kentucky College of Law; M.A. 2017, University of Kentucky Patterson School of Diplomacy.

[2] Seee.g., Olmstead v. United States, 277 U.S. 438 (1928), overruled by Katz v. United States, 389 U.S. 347 (1967), and Berger v. New York, 388 U.S. 41 (1967) (holding that warrantless wiretapping by law enforcement did not violate the fourth or fifth amendment); Katz v. United States, 389 U.S. 347 (1967) (tracing the evolution of Fourth Amendment protections against “unreasonable searches and seizures” as they relate to electronic wiretaps), discussed by Nicandro Iannacci, Katz v. United States: The Fourth Amendment adopts to new technology, Nat’l. Const. Ctr. (Dec. 18, 2018), https://constitutioncenter.org/blog/katz-v-united-states-the-fourth-amendment-adapts-to-new-technology [https://perma.cc/7VKB-5H3Y].

[3] Vivek Wadhwa, Laws and Ethics Can’t Keep Pace with Technology, MIT Tech. Rev. (Apr. 15, 2014), https://www.technologyreview.com/s/526401/laws-and-ethics-cant-keep-pace-with-technology/ [https://perma.cc/K9Q5-NHRF] (“These regulatory gaps exist because laws have not kept up with advances in technology. The gaps are getting wider as technology advances…”).

[4] Id. (“We haven’t come to grips with what is ethical, let alone what the laws should in be in relation to [such] technologies . . . ”).

[5] Id. (“Today, technology is on an exponential curve… changes of a magnitude that once took centuries now happen in decades, sometimes in years.”).

[6] Margaret A. Boden, Artificial Intelligence: A Very Short Introduction 19 (2018).

[7] John Ellett, New AI-Based Tools Are Transforming Social Media Marketing, Forbes (July 27, 2017, 6:00 AM), https://www.forbes.com/sites/johnellett/2017/07/27/new-ai-based-tools-are-transforming-social-media-marketing/#162c713369a2 [https://perma.cc/43FL-97MH]. 

[8] See Paul Scharre, Army of None: Autonomous Weapons and the Future of War 45 (2018) (“At least thirty nations currently employ supervised autonomous weapons systems of various types to defend ships, vehicles, and bases from attack.”).

[9] Rüdiger Wolfram, International Law, Max Planck Encyclopedia of Pub. Int’l. L. ¶16 (last updated Nov. 2006), http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1424 [https://perma.cc/4ZWN-LLMA].

[10] Seee.g., John Bolton, Is There Really Law in International Affairs, 10 Transnat’l L. & Contemp. Probs. 1, 28–30 (2000). 

[11] Seee.g., Michael Hogan & Greg Whitmore, The top 20 artificial intelligence films- in pictures, The Guardian (Jan. 8, 2015, 7:29 AM), https://www.theguardian.com/culture/gallery/2015/jan/08/the-top-20-artificial-intelligence-films-in-pictures [https://perma.cc/E74F-3TH5].

[12] Kathleen Walch, Rethinking Weak vs String AI, Forbes (Oct. 4, 2019, 6:30 AM), https://www.forbes.com/sites/cognitiveworld/2019/10/04/rethinking-weak-vs-strong-ai/#7da76f676da3 [https://perma.cc/B7YL-YCHK].

[13] Boden, supra note 6, at 18.

[14] See id. at 18–19; see Nick Bostrom, Superintelligence: Paths, Dangers, Strategies 16 (2014) (discussing the role of data mining in the global financial market).

[15] Id. at 14–16.

[16] Id. at 16 (noting “the demarcation between artificial intelligence and software in general is not sharp… this brings us back to McCarthy’s dictum that when something works it is no longer called AI”).

[17] Id. at 12–14. Deep Blue, a chess-playing AI, made news in 1997 when it beat Garry Kasparov, the world chess champion. Unlike Gary Kasparov, however, Deep Blue could not carry that intelligence to other areas, a clear example of a narrow or specific AI.

[18] Scharre, supra note 8, at 28.

[19] Id. at 29.

[20] Id.

[21] Id.

[22] Id. at 30.

[23] See id. (describing how a Roomba, for example, might move among different processes during completion of its task).

[24] Id.

[25] Id. at 31.

[26] Id. at 30–31.

[27] Id. at 30.

[28] See id. at 32; James Barrat, Our Final Invention: Artificial Intelligence and the End of the Human Era 113–14 (2013). The varying levels of complexity involved in autonomous systems has advanced in recent decades, with growing bodies of research on artificial neural networks (ANNs) and genetic algorithms, among others. While this Note does not go into depth on any of these processes, a deeper understanding of the technical aspects of AI research is helpful to those interested in more fully understanding the complexities of regulation and oversight. See also Barrat at 74–75; Bostrom, supra note 14, at 10–11; Ray Kurzweil, The Age of Spiritual Machines: When Computers Exceed Human Intelligence 81 (2000).

[29] Graham Bowley, Lone $4.1 Billion Sale Led to ‘Flash Crash’ in May, N.Y. Times (Oct. 1, 2010), https://www.nytimes.com/2010/10/02/business/02flash.html [https://perma.cc/2MJN-22YD].

[30] Scharre, supra note 8, at 199.

[31] Id. at 203.

[32] Bostrom, supra note 14, at 17.

[33] Id

[34] Id. at 21 (“Smart professionals might give an instruction to a program based on a sensible-seeming and normally sound assumption… this can produce catastrophic results when the program continues to act on the instruction… even in the unanticipated situation where the assumption turns out to be invalid.”).

[35] Fred Kaplan, Dark Territory: The Secret History of Cyber War 203–11 (2016).

[36] Ralph Langner, Stuxnet’s Secret Twin, Foreign Policy (Nov. 19, 2013, 5:26 PM), https://foreignpolicy.com/2013/11/19/stuxnets-secret-twin/ [https://perma.cc/B5Y4-KREF]. 

[37] Barrat, supra note 28, at 256.

[38] Langner, supra note 36.

[39] Id.

[40] See, e.g., Natasha Turk, The next 9/11 will be a cyberattack, security expert warns, CNBC June 1, 2018, 7:55 AM), https://www.cnbc.com/2018/06/01/the-next-911-will-be-a-cyberattack-security-expert-warns.html [https://perma.cc/7C37-WGSK]. 

[41] See Ian Kerr and Katie Szilagyi, Asleep at the switch? How killer robots become a force multiplier of military necessity, in Robot Law, 354 (Ryan Calo, A. Froomkin, and Ian Kerr, eds., 2016) (arguing that, by failing to properly regulate, oversee, and guide the advancement of AI tech, in this case autonomous weapons, society essentially allows new technology to “determine its own use.”).

[42] Oscar Schachter, The UN Legal Order: An Overview, The United Nations and Int’l. L. 3 (Christopher Joyner, ed., 1997) available at https://www.jstor.org/stable/2204020.

[43] Wolfrum, supra note 9.

[44] Bolton, supra note 10, at 48 (“International law is not law; it is a series of political and moral arrangements that stand or fall on their own merits, and anything else is simply theology and superstition masquerading as law.”).

[45] See Jana von Stein, Compliance with International Law, Int’l Studies Ass’n and Oxford U. Press (last updated Nov. 2017) http://www.janavonstein.org/uploads/4/6/1/9/46194525/oxford-encyclopedia.pdf [https://perma.cc/L9A5-SLD5]. 

[46] Louis Henkin, How Nations Behave 47 (2d. ed. 1979). For the discussion herein, see supra Part II Section B, at 6–8.

[47] Id.

[48] Seee.g., Olivia Erdélyi and Judy Goldsmith, Regulating Artificial Intelligence: Proposal for a Global Solution, Association for the Advancement of Artificial Intelligence, 1, 2, 9 (2018), https://www.aies-conference.com/2018/contents/papers/main/AIES_2018_paper_13.pdf [https://perma.cc/N6SG-GWA8].

[49] Id. at 1-2.

[50] Bostrom, supra note 14, at 249. This possibility is particularly concerning in two instances: first, in the case of lethal autonomous weapons; and second, in the case of AGI. Bostrom writes:

Consider a hypothetical AI arms race in which several teams compete to develop superintelligence. Each team decides how much to invest in safety–knowing that resources spent on developing safety precautions are resources not spent on developing the AI… there might be a risk-race to the bottom, driving each team to take only a minimum of precautions. Id. at 247.

[51] Samantha Besson, Sovereignty, Max Planck Encyclopedia of Public International Law (Last updated April 2011), http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1472 [https://perma.cc/Z3VW-4NQH]. 

[52] Seee.g., Shen, infra note 54 (discussing that states often follow international law, although they are not forced to do so, and can regularly choose not to do so).

[53] Wolfrum, supra note 9.

[54] See, e.g., Harld Hongju Koh, Why Do Nations Obey International Laws?, 106 Yale L.J. 2599, 2602–03 (1997) (arguing that international laws create normative structures that are internalized and reproduced in domestic law, which helps create national understanding of sovereignty and a nation’s place in global society, forming a type of virtuous feedback cycle); see generally Jianming Shen, The Basis of International Law: Why Nations Observe, 17 Dickson Int’l L. 287 (1999) (discussing a wide range of theories of observance of international law, including naturalist theories, positivist theories, and other more modern political science theories such as power politics and peaceful coexistence.).

[55] Eric Posner, Do States Have a Moral Obligation To Obey International Law?, 55 Stan. L. Rev. 1901, 1902, 1919 (2003) (arguing that states do not, in fact, have a moral obligation to follow international law, but may have prudential reasons for doing so).

[56] von Stein, supra note 45, at 20 (noting that “various mechanisms… can help to ensure that states keep their international promises much of the time”).

[57] Id. at 1918.

[58] Juliet Kaarbo, Jeffrey S. Lantis, Ryan K. Beasley, and Michael T. Snarr, The Analysis of Foreign Policy in Comparative Perspective, Foreign Policy in Comparative Perspective: Domestic and International Influences on State Behavior, 4 (2nd. ed., Ryan K. Beasley, Juliet Kaarbo, Jeffrey S. Lantis, and Michael T. Snarr, eds. 2013).

[59] John Murphy, Force and Arms, The United Nations and International Law 122–29 (Christopher Joyner, ed., 1997).

[60] See discussion supra II. A, at 6.

[61] One particularly salient example in this case–though comparisons can be overdone–is the creation of the International Autonomic Energy Agency in the wake of the Second World War, the bombing of Nagasaki and Hiroshima, and the understanding of what nuclear technology could do, both in terms of societal benefits and potential threats. The IAEA, founded in 1957, had 171 member states as of February 5, 2019. See International Atomic Energy Agency (IAEA), https://www.iaea.org/about/governance/list-of-member-states [https://perma.cc/PM7U-5HWN] (last visited Oct. 2, 2019); CERN and the Human Genome project also present good examples of international scientific collaboration, though without the immediacy that nuclear technology and now, arguably, AI technology present. See Bostrom, supra note 14, at 253.

[62] Grant Wilson, Minimizing Global Catastrophic and Existential Risks from Emerging Technologies Through International Law, 31 Va. Envtl. L.J. 307, 349–350 (2013).

[63] See von Stein, supra note 45 (including an in-depth discussion of the elements of international normative structures that encourage compliance with international law).

[64] Id.

[65] Seee.g., Michael D. Shear, Trump Will Withdraw U.S. From Paris Climate Agreement, N.Y. Times (June 1, 2017), https://www.nytimes.com/2017/06/01/climate/trump-paris-climate-agreement.html [https://perma.cc/5G67-4M95]. 

[66] Andrew Guzman, A Compliance-Based Theory of International Law, 90 Calif. L. Rev. 1823, 1880 (2002).

[67] Id. at 1886–87.

[68] World Trade Organization, Principles of the trading system, https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm [https://perma.cc/T2FP-WDJ7] (last visited Jan. 14, 2019).

[69] See, e.g., Boden, supra note 6, at 147–49 (discussing NGO and expert calls for increased oversight).

[70] United Nations Interregional Crime and Justice Research Institute, UNICRI Centre for Artificial Intelligence and Robots, http://www.unicri.it/in_focus/on/UNICRI_Centre_Artificial_Robotics

[https://perma.cc/6JHC-EGM3] (last visited Jan. 13, 2019).

[71] Erdélyi & Goldsmith, supra note 48, at 3.

[72] University of Oxford Future of Humanity Institute, Centre for the Governance of AI, https://www.fhi.ox.ac.uk/GovAI/ [https://perma.cc/MM8G-3V4Y] (last visited Jan. 13, 2019). Although outside the scope of this paper, FHI and the Centre for the Governance of AI have a wealth of research on desired policy outcomes of governance structures, as well as more technical information such as forecasts on future AI capabilities, malicious use, and machine learning advances, which can be accessed at https://www.fhi.ox.ac.uk/publications/ [https://perma.cc/9MEU-SCUB] (last visited Jan. 13, 2019).

[73] See Scharre, supra note 8, at 103 (“As of June 2017, sixteen countries possessed armed drones…”).

[74] See id. at 47–48 (discussing the Israeli Harpy drone, which is fully autonomous, requiring no human approval of its targets. It has been sold to China, India, and Turkey, among others).

[75] Campaign to Stop Killer Robots, About Us, https://www.stopkillerrobots.org/about/ [https://perma.cc/VUD2-YXCM] (last visited Oct. 6, 2019).

[76] Id.

[77] Michael N. Schmitt and Jeffrey S. Thurnher, “Out of the Loop”: Autonomous Weapon Systems and the Law of Armed Conflict, 4 Harv. Nat’l Sec. J. 231, 233 (2013);

[78] Id. at 233–34.

[79] Id. at 280–81.

[80] European Commission, High-Level Expert Group on Artificial Intelligence, https://ec.europa.eu/digital-single-market/en/high-level-expert-group-artificial-intelligence [https://perma.cc/EF5J-6ZMY] (last visited Jan. 13, 2019).

[81] EU High-Level Expert Group on Artificial Intelligence, Draft Ethics Guidelines for Trustworthy AI (Dec. 18, 2018), https://ec.europa.eu/digital-single-market/en/news/draft-ethics-guidelines-trustworthy-ai [https://perma.cc/822H-LR7V].

[82] Tim Dutton, An Overview of National AI Strategies (June 28, 2018), https://medium.com/politics-ai/an-overview-of-national-ai-strategies-2a70ec6edfd [https://perma.cc/YN22-GGSE]. 

[83] Id.

[84] Scharre, supra note 8, at 89.

[85] Id. These three classes are “semiautonomous weapons, such as homing munitions…defensive supervised autonomous weapons, such as the ship-based Aegis weapon system…and non-lethal, non-kinetic autonomous weapons, such as electronic warfare.”

[86] Id.

[87] Id. at 90.

[88] See Bostrom, supra note 14, at 206.

[89] Scharre, supra note 8, at 89.

[90] See Centre for the Governance of AI, supra note 72.

[91] Seee.g., Wolfram, supra note 9 (considering areas falling under the governance of international law such as the high seas, climate issues, and international economic issues).

[92] See von Stein, supra note 45.

[93] Seee.g., IAEA, supra note 61, and the 170 member states of IAEA.

[94] See Bostrom, supra note 14, at 206.

[95] Seee.g., Erdélyi and Goldsmith, supra note 48; Wilson, supra note 62, at 349–50.

[96] Wilson, supra note 62, at 308–11 (discussing the risks created by nanotechnology, AI, bioengineering, and the Large Hadron Collider).

[97] Id. at 355–56.

[98] Id. at 356–57.

[99] See von Stein, supra note 45, at 7–9 (discussing the role of reputation in creating state compliance).

[100] See UNICRI, supra note 70.

[101] See Bostrom, supra note 14, at 249–50 (discussing the benefits of collaboration, including “the sharing of ideas.”).

[102] Boden, supra note 6, at 147; Ian Semple, Thousands of Leading AI Researchers Sign Pledge Against Killer Robots, The Guardian (July 18, 2018), https://www.theguardian.com/science/2018/jul/18/thousands-of-scientists-pledge-not-to-help-build-killer-ai-robots [https://perma.cc/4PPL-FKFB]. 

[103] See Boden, supra note 6, at 148–49.

[104] Max Tegmark, Future of Life Institute, https://futureoflife.org/author/max/ [https://perma.cc/3BGT-DJM4] (last visited Mar. 15, 2019).

[105] Nick Bostrom, Nick Bostrom, https://nickbostrom.com/ [https://perma.cc/Y248-ZG5F] (last visited Mar. 16. 2019).

[106] Boden, supra note 6, at 147–48 (noting that there have been multiple expert conferences discussing AI safety as well as a number of open letters condemning use of, for example, autonomous weapons in war).

[107] Seee.g., Bostrom, supra note 14, at 259–60; Barrat, supra note 26, at 152–53; Boden, supra note 6, at 131.

[108] Bostrom, supra note 14, at 22 (internal footnote omitted).

[109] See id., at 95–99.

[110] See id., supra note 14, at 22–29 for an in-depth discussion of expert opinions on when human-intelligence level AI will be achieved.

[111] Seee.g., von Stein, supra note 45, at 21 (noting that not all states follow almost all of their agreements almost all of the time, and offering a discussion of the complex nature of state compliance); see also Wolfram, supra note 9, at 5, 14 (noting there is no enforcement mechanism in international law). Although these authors do not support these arguments, they do make note of them as critiques raised against international law.

[112] George Lucas, Jr., Legal and Ethical Precepts Governing Emerging Military Technologies: Research and Use, 2013 Utah L. Rev. 1271, 1275 (2013) (noting that international “regulatory statutes would prove unacceptable to, and unenforceable against, many of the relevant parties”).

[113] Posner, supra note 55, at 1905.

[114] See Part II Section B, supra page 10–13.

[115] Barrat, supra note 28, at 155.

[116] Seee.g., Bostrom, supra note 14, at 15–16 (discussing several current peaceful uses of AI, including increasing the speed and capacity of internet searches and voice and facial recognition).

[117] Seee.g., Human Rights Watch, supra note 81, at 12 (calling for an end to the use and prevention of future development and use of increasingly automated and autonomous drones in warfare). 

[118] See Scharre, supra note 8, at 102–03 (noting the number of states possessing and using armed drones). Consider also the case of Israel, which has developed the fully autonomous Harpy drone and sold this drone to, among others, China, India, and Turkey, creating both a military and financial incentive for Israel to avoid increased regulation of autonomous weapons. See id. at 45–48.

[119] Bostrom, supra note 14, at 246–49.

[120] Karen Hao, Americans want to regulate AI but don’t trust anyone to do it, MIT Tech. Rev. (Jan. 10, 2019), https://www.technologyreview.com/s/612734/americans-want-to-regulate-ai-but-dont-trust-anyone-to-do-it/ [https://perma.cc/ZCX4-PWXZ]. 

[121] See, e.g., Scharre, supra note 8, at 117–19 (discussing the beginning of what may become an autonomous arms race).

[122] Id. at 330 (“The main rationale for building fully autonomous weapons seems to be the assumption that others might do so”).

[123] See Part III Section A, supra page 11–14.

[124] Bostrom, supra note 14, at 259.

[125] See International Atomic Energy Agency (IAEA), https://www.iaea.org/sites/default/files/16/08/

iaea_safeguards_introductory_leaflet.pdf [https://perma.cc/PLH8-NDBA] (last visited Jan. 13, 2019). 

[126] See Bostrom, supra note 14, at 306–07.

[127] Barrat, supra note 28, at 266 (“Like natural selection, we choose solutions that work first, not best.”).

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The Curiously Nonrandom Assignment of Sixth Circuit Senior Judges

In this edition of KLJ Online, Vol. 108, Clark L. Hildabrand—graduate of Yale Law School and former Law Clerk for Judge Sutton on the Sixth Circuit Court of Appeals— examines Sixth Circuit Court of Appeals assignments. Further, he analyzes potential weaknesses in the nonrandomness of the judicial assignment system. The Essay relies on data from the Sixth Circuit from 2012-2016.

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Legal Realism Now?

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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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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. 


[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. 


[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).