Election of Volume 69 Staff

It is with great pride that we announce to you the election of the Senior Editorial Staff of Volume 69 of the Syracuse Law Review! The new staff will be fully transitioned into their new positions by June 1, 2018. Please join us in congratulating this fantastic group of students!

Chuck Norris Hits CBS, Sony With $30M Lawsuit for ‘Walker, Texas Ranger’ Lost Profits

Written by Stefani B. Joslin

Background

From 1993 to 2003, actor Chuck Norris starred in the hit television series, Walker, Texas Ranger (“Walker”). When the show began in 1993, Norris entered into a contract with CBS and SONY Pictures over how he and his company, Top Kick Productions (“Top Kick”), would receive profits from the show.

Recently, Norris claimed he has not received the profits that were promised to him not under the agreement. Through Top Kick, he filed suit on January 31st in the Los Angeles Superior Court against CBS and SONY for $30 million, alleging breach of contract and breach of the implied covenant of good faith and fair dealing.

The Agreement

CBS and SONY had contractually agreed to pay Norris, through Top Kick, 23% of the revenue from the show. This agreement also prevented CBS from deducting revenue costs that were unrelated to the production of Walker.

The 23% clause was meant to be stable over time and have similar longevity. A layout of how profit would be calculated through the showing of the program, for instance on television or DVDs, was also set out in the contract. CBS and SONY were obligated to accurately report revenue, as well as other expenses related to Walker, in order for Top Kick to be paid the proper profit percentage. All third party agreements were also to be accounted for and shown to Norris and Top Kick.

The Complaint

Norris’ complaint states three causes of action: (1) breach of contract against CBS; (2) breach of the implied covenant and good faith and fair dealings against both companies; and (3) accounting against both companies.

Norris claims CBS and SONY have materially breached the contract by consciously seeking to market and sell Walker in a way that still collects revenue but does not pay Norris or Top Kick. The companies have allegedly used fees and revenues, through the continuous exploitation of Walker, to materially breach the agreement, failing to pay the profits owed to Norris.

According to Norris, Walker’s success is due to his work and popular image. In direct response to that, Norris alleges CBS used his “imagery” of being a social icon and movie star as the distributor of the Walker series on television and video. “CBS was among the networks that were fully aware of Chuck Norris’ success, history, brand, and image,” Norris’ lawyer stated, “which resulted in CBS agreeing to become the primary distributor of [Walker].”

Norris’ complaint also states the companies have rejected and ignored deals with third parties that were willing to pay premium for Walker, and they “instead chose to engage in self-dealing transactions to benefit only themselves.” One example is Katz Broadcasting, which had a license for Walker and wished to extend its license through SONY for an additional four years, totaling $5 million dollars. SONY, according to the complaint, ignored Katz’s offer and allowed for the license period to lapse, giving Walker away to a lower-tier cable network that was owned by SONY.

Moreover, no agreements or copies were ever presented or reported to Norris or Top Kick, relating to CBS and SONY entering into licensing and other agreements with third parties.  By failing to report these agreements with third parties, as well as ignoring third parties who wanted to pay a larger percentage, Norris claims the companies did not act in good faith within their contractual obligations and have used his popularity and “imagery” as a social icon for exploitation.

The Consequences

With changes in technology, CBS and SONY have been using streaming video-on demand (“S-VOD”), instead of focusing on television and DVDs. This, according to the contract, falls under exploitation. As a result, since 2004, that S-VOD revenue has not been accounted for when calculating Walker’s profit.

The complaint states Top Kick and Norris do not know how much revenue has been generated through S-VOD alone, since the companies had failed to accurately report. With the show’s success and popularity, however, more than $692 million has been generated in total revenue. According to Norris, CBS and SONY have failed to pay him his share “of the profits earned from any, and all, exploitation of Walker.”

Norris and Top Kick have requested a trial by jury. No comment has been made by officials from CBS or SONY.

 

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Sources Cited

Ashley Cullins, Chuck Norris Hits CBS, Sony With $30M Lawsuit over ‘Walker, Texas Ranger’ Profits, The Hollywood Reporter (Feb. 1, 2018,).

Complaint and Demand for Jury Trial, Top Kick Productions v. CBS Broadcasting, CBS Corp., SONY Pictures Television, No. BC-692372 (Super. Ct. of Cal., Los Angeles Ctny.).

Denise Petski, Chuck Norris Sues CBS & Sony TV For $30M Over ‘Walker, Texas Ranger’ Profits, Deadline (Feb, 1, 2018).

Douglas Ernst, Chuck Norris takes on Sony, CBS in $30M lawsuit over ‘Walker, Texas Ranger’ profits, Washington Times (Feb 2, 2018).

Nicole Bitette, Chuck Norris is suing CBS, Sony for $30 M over ‘Walker, Texas Ranger’ profits, N.Y. Daily News (Feb. 2, 2018).

Photo courtesy of Amazon.

The Opioid Crisis: Lawsuits Filed Against Big Pharma and Drug Distributors

Written By Liz Lehmann

On January 23, 2018, Onondaga County (the “County”) joined many cities and counties across the nation in suing pharmaceutical companies and drug distributors over their role in the opioid crisis.

Background

Opioids killed more than 42,000 people in 2016 nationwide, 142 of which were in Onondaga County. Forty percent of all opioid overdose deaths involved a prescription opioid.  The amount of prescription opioids sold to pharmacies, hospitals and doctors’ offices has quadrupled in the last decade, where the overall change in the amount of pain that Americans reported has been unchanged. Studies indicate that many users begin with pills but shift to injecting heroin due to its cheaper cost.

In response, individuals, as well as municipal and county governments, are filing lawsuits against the leading opioid manufacturers and distributors, alleging that the opioid addition stems from the manufacturers’ over-promotion and sales of prescription opioid medications, such as OxyCotin, Percocet, Vicodin, and numerous generics.

The Complaint

The County’s Complaint names over two-dozen defendants, including Purdue Pharma (manufacturers of OxyCotin), Teva Pharma and its subsidiary Cephalon (manufacturers and distributors of fentanyl, a synthetic opioid), Johnson & Johnson and its subsidiary Janssen Pharmaceuticals, and Endo Health Solutions (manufacturers of oxymorphone and hydrocodone products).

The causes of action consist of negligence, fraud, deceptive acts and practices, false advertising, and the Racketeer Influenced and Corrupt Organizations Act (“RICO”).  The Complaint alleges that defendants disseminated false and misleading messages, downplaying the seriousness of prescription opioids and creating false perceptions that they were safe and effective for the long-term treatment of pain.

The County’s claim for relief include costs for providing medical care; treatment, counseling, and rehabilitation services; treatment of infants born from opioid-related medical conditions; care for children whose parents suffer from opioid-related disability; and costs associated with law enforcement and public safety relating to the opioid epidemic.

Another Big Tobacco Moment?

The growing number of lawsuits against drug manufacturers and distributors has led some to wonder whether the opioid crisis will deal Big Pharma its Big Tobacco moment. In the 1990s, several states—including New York—sued the major cigarette manufacturers to recover Medicaid and other costs associated with treating sick and dying cigarette smokers. In 1998, the cigarette manufacturers and 46 states entered into a Master Settlement Agreement, imposing prohibitions and restrictions on tobacco advertising and practices that sought to hide negative information about smoking, in addition to the requirement that a tobacco prevention foundation be created. The Agreement also had a $248 billion civil payout, from which hundreds of millions of dollars went to New York State.

Experts and attorneys distinguish the present litigation from the tobacco settlement, however. The big difference? The current cases involve causes of action against companies who appear to be fully compliant with the law. Unlike tobacco, where cigarettes are bought directly from the manufacturer to the consumer and can harm smokers and nonsmokers alike, prescription opioids are individually taken upon the recommendation and advice of a doctor. Addictions arise from the misuse of the prescription opioid. Should the drug manufacturer be responsible for such misuse?

Another shortcoming may be the plaintiffs’ failure to demonstrate specific instances where drug companies misled doctors or consumers. A recent lawsuit filed by the City of Chicago against Big Pharma had four out of five of its defendant manufacturers dismissed for such lack of specificity. The remaining defendant—Purdue—had already added clear warnings of the risks of addiction to its OxyCotin labels after pleading guilty to criminal misbranding in 2007. Also as a result from the 2007 charges, Purdue changed its manufacturing process to include “abuse-deterrent technology,” making the drugs nearly impossible to crush, snort, or inject.

Overall, as a general matter, it may be difficult for the courts to assign blame when it comes to the opioid epidemic, where pain medications are lawful, approved, and regulated by the FDA, in addition to including many intermediaries.

Big Pharma’s Response

Some of the named defendants have issued public release statements. Regarding this Complaint, Purdue stated:

We maintain that the allegations made in these lawsuits against our company are baseless and unsubstantiated.  Our actions in the marketing and promotion of our opioid pain medicines were appropriate and responsible.  At the same time we recognize that opioid abuse and addiction are serious public health issues that must be addressed. Finding those solutions will require collaboration among many stakeholders across the country.  We look forward to being a part of the ongoing dialogue and finding ways to address the crisis.

Despite Big Pharma’s denial of wrongdoing, settlements have been reached in other lawsuits involving opioid manufacturers and distributors. In late 2015, Purdue paid $24 million in a settlement agreement to the state of Kentucky on the claim that Purdue had marketed their OxyCotin drug as safe. In 2017, Mallinckrodt PLC—a defendant in the County’s present lawsuit—paid $35 million to resolve an investigation into their monitoring and reporting methods for suspicious orders of opioids. Costco paid $11.75 million in 2017 based on an investigation indicating that they had irresponsibly filled improper or incomplete prescriptions.

What’s Next?

Settlement discussions are underway in jurisdictions across the nation.  Some manufacturers, such as Purdue, have proposed a global settlement in an attempt to cease investigations and lawsuits. However, lengthy litigation will likely ensue and it is expected that more cities and counties will join in the legal onslaught.

 

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Sources Cited

Andrew Donovan, Onondaga County Blames Opioid Manufacturers and Distributors for Heroin Crisis, Files Lawsuit, LocalSYR.com (Jan. 23, 2018),

Complaint and Jury Demand, County of Onondaga v. Purdue Pharma, L.P. et al. (N.D.N.Y. 2018).

Eric Heisig, Federal Judge Presiding Over Opioid Litigation Will hold Jan. 31 Conference for Settlement Talks, Cleveland.com (Jan. 12, 2018).

Erika Fry, Big Pharma Is Getting Hit With a Huge Wave of Opioid Suits, Fortune (Sept. 27, 2017).

Jef Feeley and Jared S. Hopkins, Purdue Approaches States in Bid to Settle Opioid Claims, Bloomberg (Nov. 17, 2017).

Lindsey Pasieka, Opioid Lawsuits, ConsumerSafety.org (2018).

The Master Settlement Agreement: An Overview, Tobacco Control Legal Consortium (2015).

Sanja Gupta, Unintended Consequences: Why Pain Killer Addicts Turn to Heroin, CNN (Jun. 2, 2016).

Understanding the Epidemic, Centers for Disease Control and Prevention (Aug. 30, 2017).

Zachary A. Siegel, Suing Big Pharma for the Opioid Epidemic Is Too Little, Too Late, Medium (Oct. 11, 2017).

Photo courtesy of TLI.

Victim Impact Statements and the Case of Larry Nassar

Written By Briannie Kraft

 

Background  

In September of 2016, two former gymnasts came forward accusing Larry Nassar, a former doctor for USA Gymnastics and Michigan State Athletics, of sexually assaulting them during their treatments with him. Over the next several months, more than 150 victims came forward with similar stories of abuse by Nassar.

Nassar pled guilty to assaulting seven girls on November 22, 2016, and he proceeded to sentencing earlier this month. From January 16th to 24th, more that 150 statements were read aloud by either victims or parents of victims. Judge Rosemarie Aquilina, who remarked that this case had “shaken [her] to [her] core,” presided over the proceeding, ultimately dealing Nassar a 175-year prison sentence.

Legal Precedent

This issue of victim statements in criminal cases was first addressed by the Supreme Court of the United States in 1987 in Booth v. Maryland. There, the Court did not allow victim impacts statements to be made at any point during the criminal process, holding that it was a violation of the Eighth Amendment, posed potential bias concerns, and lacked relevancy to the guilt of the defendant.

In 1991, however, the Supreme Court overturned its Booth rule in Payne v. Tennessee. Veering from immediate precedent, the Court decided to allow victim impact statements only at the sentencing stage of a criminal proceeding. As the “victims’ rights” movement was sweeping across the nation, one of the motivating factors for this change was to give victims of crimes a place in the criminal justice system.

Victim Statements as Healing

During Nassar’s sentencing proceeding, Judge Aquilina allowed statements to be made by nearly any victim wishing to speak. Over the course of a week, the Court heard more than 150 victims and parents give vivid accounts of the abuse they, or their children, had suffered, as well as the effects it did and does have on their lives.

In both the scientific and legal fields, experts opine that victim impact statements are a positive contribution to victims’ healing processes, as the statements offer victims an opportunity to confront their abuser in a safe and procedurally-protected place. Research conducted by Mothers Against Drunk Driving (MADD) helps to illustrate this point. MADD found that 62% of victims were “satisfied” with the criminal justice system, if they were allowed to present an oral victim impact statement. Meanwhile, 75% of victims, who were not given the opportunity to give any form of a victim impact statement, were “dissatisfied” with the criminal justice system. The study concluded that victim trauma was reduced when victims were “taken seriously and believed[,]” as well as when victims were kept up-to-date with regard to their case.

In this case, a prime example is the first woman to go public with Nassar’s abuse. Rachael Denhollander, one of Nassar’s victims, shared the importance of victim impact statements, saying, “Once I started to see that this process was therapeutic – just because of how much you have to talk about it – I wanted to take every chance I could to liberate myself.”

Victim Statements as Information

Beyond the healing affect they can offer victims, these statements, in the context of sentencing, can also provide sentencing judges with a fuller picture of the harm the defendant caused victims (and/or others). As it is in society’s favor that judges make well-informed decisions, victim impact statements are one way by which a judge may be more fully prepared for sentencing. In this case, for example, Judge Aquilina heard statements from victims who ranged in age, time of abuse, length and extent of abuse, and background, in addition to hearing from some of the parents. Such a range of victim impact statements provides, in theory, a fuller illustration of the extent and effects of Nassar’s crimes. Moreover, as defendants are permitted to plead their case and mitigating circumstances to the court during the sentencing process, victims seek a similar opportunity.

In contrast, however, courts also take into account that there are “instances where the admission of a victim impact statement is unduly prejudicial against the defendant.” The means in which statements are delivered, and the number of statements presented, are two of many considerations judges take into account with regard to the assessment of prejudice. In Nassar’s case, there is controversy surrounding the volume of statements permitted at sentencing, as well as the impact of those statements.

According to Stephen Gillers, a professor of law at New York University, what was “unusual [in Nassar’s case was] that the number of victims who [were] willing to speak [gave] the judge more than 100 opportunities to [say what she thought about the case].” Judges are supposed to be neutral and detached magistrates. Here, at one point Judge Aquilina stated to the victims, “Your words are a sign you are are healing, and taking your power back…and he will fall, and you will rise. You and your fellow sisters are enabling him to remain behind bars for the rest of his natural life.” This was just one example among many of Judge Aquilina sharing her thoughts about Nassar and the victims throughout the sentencing proceeding.

Conclusion

Judge Aquilina cited People v. Waclawski, a 2009 Michigan Court of Appeals case, as support for the volume of victim impact statements.

“[Michigan laws] grant individuals who suffer direct or threatened harm as a result of a convicted individual’s crime the right to submit an impact statement both at the sentencing hearing and for inclusion in the PSIR; however, the right is not limited exclusively to the defendant’s direct victims. Instead, ‘a sentencing court is afforded broad discretion in the sources and types of information to be considered when imposing a sentence . . . ’ (citation omitted). Moreover, this broad discretion does not infringe on a convicted individual’s due process rights, because the evidence was not taken into consideration in determining the defendant’s guilt.”

On a national scale, however, the aforementioned arguments –– on one hand, the healing and source of information, on another hand, the impact and volume of statements –– have initiated a larger, national conversation on such actions within a sentencing proceeding. Moving forward, perhaps we will see these matters addressed in more state and federal sentencing courts matters. For now, in this case, it is possible that Nassar will appeal.

 

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Sources Cited

Booth v. Maryland, 482 U.S. 496, 499 (1987).

Payne v. Tennessee, 501 U.S. 501 808, 822-24, (1991).

Payne v. Tennessee, 501 U.S. 501 808, 834, (1991) (See J. Scalia, Concurring).

People v. Waclawski, 286 Mich. App. 634, 691-692 (2009).

The Daily: Thursday, January 25, 2018, The New York Times (Jan. 25, 2018) (downloaded using iTunes).

Scott Cacciola, Victims in Larry Nassar Abuse Case Find a Fierce Advocate: The Judge, The New York Times (Jan. 23, 2018).

CNN Staff, Read Judge Rosemarie Aquilina’s powerful statement to Larry Nassar, CNN (Jan, 24, 2018).

Eric Levenson, Larry Nassar Sentenced to 175 Years in Prison for Decades of Sexual Abuse, CNN (Jan. 24, 2018).

Joshua Barajas, Sexual Abuse Survivors Confront Former USA Gymnastics Doctor: ‘Little girls don’t stay little girls forever,’ PBS New Hour (Jan. 24, 2018).

Josh Hafner, The Judge in the Larry Nassar Trial: Incredible Quotes to Victims and their Abuser, USA Today (Jan. 24, 2018). 

National Institute of Justice, Victim Impact Statements (Dec. 4, 2007).

Paul G. Cassell, Walter C. reckless-Simon dinitz Memorial Lecture: In Defense of Victim Impact Statements, 6 Ohio St. J. Crim. L. 611, 621-29 (2009).

Annett van Der Merwe, Therapeutic Jurisprudence at the Conference of the International Association of Law & Mental Health in Paudu, Italy: Addressing Victims’ Harm: The Role of Impact Reports, 30 T. Jefferson L. Rev. 319, 397 (2008).

Trey Hill, Victim Impact Statements: A Modified Perspective, 29 L. & Psychol. Rev. 211, 216 (2005).

Kenji Yoshino, The City and the Poet, 114 Yale L. J. 1835, 1877 (2005).

Photo courtesy of ABC News.

Top Ten Articles of 2017

Last year, there were many impactful cases and holdings nationwide. Today, we want to reflect on the year that has passed, and look forward to the year ahead, by counting down our top ten most-read articles of 2017!

 10. Masterpiece Cakeshop

The case stems from a 2012 incident, wherein a cakeshop owner refused to make two men a wedding cake on the basis that their same-sex marriage was contrary to his sincerely held religious beliefs.

9. Bill Nye, the Lawsuit Guy

Photo via Netflix USA

Bill Nye filed a lawsuit in the Los Angeles Superior Court alleging Walt Disney Company and its subsidiary, Buena Vista Television, deprived Nye and other owners of “Bill Nye the Science Guy” of approximately $28 million in distribution profits.

8. Bankruptcy Code Definition of “Received”

The Third Circuit Court of Appeals held that in order for goods to be considered “received” under section 503(b)(9) of the Bankruptcy Code, goods must be delivered into the physical possession of the debtor or its agents within 20 days before the debtor files for bankruptcy.

7. Net Neutrality Explained

Under net neutrality, ISPs have not been able to discriminate by blocking apps or websites they deem unfavorable or contrary to their visions. The Federal Communications Commission (FCC) voted to repeal net neutrality laws on December 14, 2017.

6. Same-Sex Parents’ Names on Birth Certificates

The case began when two, married, same-sex couples in Arkansas decided to have a child through artificial insemination. The Supreme Court held that the Arkansas statute, denying same-sex couples the ability to put both of their names on their child’s birth certificate, to be unconstitutional.

5. NFL Arbitration Process

In 2016, a Philadelphia Eagles lineman was issued a 10-game ban for an NFL policy violation, which was upheld by the appointed arbitrator. Consequently, he sued both the NFL and the NFLPA in federal court.

4. Transgender Individuals Banned from Military

In 2016, President Obama announced that transgender individuals could serve openly in the armed forces. In July of 2017, President Trump announced a potential ban.

3. Case of Ezekiel Elliot

Dallas Cowboys Running Back Ezekiel Elliott was accused of assaulting his alleged former girlfriend just a few months before the season started. The NFL imposed a six-game suspension penalty, Elliott appealed to the arbitrator, and a federal court case ensued.

2. Travel Ban

Following the history of the “travel ban” of various countries, this article provides a history and a forward-looking analysis on the Supreme Court’s eventual ruling.

1. Uber Data Breach

Uber admitted to paying hackers $100,000 for a 2016 data breach in November of 2017. This came on the heels of several other mishaps, including an Federal Trade Commission (FTC) order requiring the company to permit to up to 20 years of privacy auditing, prolific workplace sexual harassment, and drivers with criminal records.

Will New York Challenge the Constitutionality of the 2017 Tax Cuts and Jobs Act?

Written by Katie Hyma

“Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.”  — Benjamin Franklin, in a letter to Jean-Baptiste Leroy, 1789.

Background

The U.S. tax bill passed on Wednesday, December 20, 2017, includes a provision capping deductions for state and local income and property taxes (“SALT”) at $10,000.  Due to the differences in income and property tax rates from state-to-state, similarly situated individuals in states with high SALT rates may end up paying a higher effective federal income tax rate than individuals in states with low SALT rates.

In states with high tax rates and high cost of living, there is speculation that the increased federal tax burden will hamper state efforts to raise tax revenue and may even deter workers from relocating to these states.  These states include New York, Connecticut, New Jersey, California, Massachusetts, Illinois, Maryland, Rhode Island, and Vermont—all states which have been reliably voting Democratic, and none of which have a single Republican senator.

Governors and legislators in New York, New Jersey, and California have indicated that they may challenge the law.  New York Governor Andrew Cuomo has not only vowed to challenge the law, but he has also discussed various state actions that could work to offset the loss of the unlimited SALT deduction.  Indeed, Mr. Cuomo signed an executive order allowing New Yorkers to pay 2018 property taxes in 2017, before the SALT cap takes effect.

Equal Protection

Cuomo hinted at an Equal Protection challenge: “They’re now robbing the blue states to pay for the red states . . . it is an economic civil war, and make no mistake, they are aiming to hurt us . . . We believe it is illegal and we will challenge it in court as unconstitutional . . . the first federal double-taxation in history, violative of states’ rights and the principle of equal protection.”

While the effect of the tax law may be unequal, to be unconstitutional, the law must have been passed with a discriminatory purpose.  That is, evidence must be presented which demonstrates that the law was passed at least in part because of, and not merely in spite of, the fact that it would burden Democratic states.  This is a high evidentiary hurdle.

Even if a discriminatory purpose is found, the Equal Protection Clause does not necessarily forbid discrimination.  Laws can, and do, discriminate all the time.  When that discrimination is invidious, such as against race, national origin, or sex, the law would be unconstitutional under the Equal Protection Clause. Yet, other types of discrimination are within the legislature’s power.  Indeed, many current tax deductions, credits, or exemptions benefit some states more than others.  For example, solar energy credits benefit states with more sunshine. None of these have run afoul of the Equal Protection Clause.

However, other constitutional provisions provide certain protections against discrimination, and coupled with the Equal Protection Clause, may create a stronger case for unconstitutional discrimination.  Here, the First Amendment right to expressive association may be implicated.  Were the SALT deduction capped for Democrats, but not Republicans, there would be a clear violation.  Although that is not the case here, it may be that state residence was used as a proxy for political affiliation, and so long as the purpose to discriminate can be shown, the constitutional challenge may have traction.

Federalism

Sovereignty may be violated when a federal law that departs from the “fundamental principle of equal sovereignty among the States” (i.e. burdens or benefits states disproportionately) is only justifiable when the “disparate geographic coverage is sufficiently related to the problem that it targets.”

In 2013, this principle was articulated when the Supreme Court invalidated the coverage formula of the Voting Rights Act (VRA)—a law passed in response to address voting discrimination that required States to obtain federal permission before enacting any law related to voting.  States were treated differently based on whether they mandated a prerequisite for voting (e.g., a literary or moral character test) and had less than 50% voter registration or turnout in the 1964 Presidential election.  This requirement expired after five years, but it was reauthorized several times.  In 2006, Congress reauthorized the act until 2031 and broadened the scope of forbidden activities, but the coverage formula was based on voter turnout as of 1972.  The Court found that the coverage formula, though sufficiently related to the problem in 1965, was not sufficiently related in 2013.

Here, while the VRA provision applied only to some states (insofar as states which did not meet the coverage formula provisions were excused from federal oversight), the law applies equally to all states. Moreover, Congress has not limited how states may legislate. A case could still be made, however, that the federalist principle of equal treatment of the states extends to tax treatment.

Again, though, the more practical concern may be the high evidentiary hurdle.  What is fair? Does the cap unfairly subsidize high-tax states, or does it shifting more of the tax burden onto states which already contribute more toward taxes?  Was there an invidious congressional motive? Where is the proof?

The federal government can also run afoul of state sovereignty when it conditions federal grants on state compliance.  While this sort of conditioning is quite common, it must not be “unduly coercive.”  The Medicaid expansion was found unconstitutional because withholding 20% of the state’s total budget for the expansion of Medicaid was found to be coercive—states were left with no genuine choice whether to accept it or not.  An argument could be made that extracting more taxes from high SALT states is coercive enough to restrict their lawmaking decisions and thus violate state sovereignty.

The issue of double-taxation could also be presented as a violation of state sovereignty.  Although double-taxation is common (e.g. the corporate income tax combined with taxes on distributions, the state tax combined with local income taxes, out of state income being taxed in two states), in 2015 the Supreme Court found that it was unconstitutional for Maryland to deny taxpayers a credit for taxes paid to other states.  An argument could be made that the principle applies to the SALT deduction, but the Maryland case was decided under the dormant Commerce Clause, which limits states from interfering with federal power.  The dormant Commerce Clause is not relevant to federal law.

The Sixteenth Amendment

Alternatively, states could challenge the deduction as unconstitutional by arguing that the Sixteenth Amendment, which authorizes federal income tax, only contemplated taxation of “income” after state taxes had been paid, making the SALT deduction Constitutionally protected.

Tax law is about striking balance.  Indeed, history suggests that the Sixteenth Amendment, which created the federal income tax, would not have been ratified without the availability of the SALT deduction.  New York may have been footing roughly 25% of the federal income tax bill at the time it was passed, and ironically, may never have signed without the availability of the SALT deduction.

Yet, the Supreme Court has characterized tax deductions as a “legislative grace,” not a constitutionally-protected right.

Procedural Due Process

Another approach may be to challenge the law on the grounds of Fifth Amendment procedural due process.  The argument would be that Republican party donors “cross[ed] the line of legitimate campaign contributions into illegal bribery,” violating the Congressional duty to make laws through legitimate processes.

Conclusion

Many commentators agree that the constitutional challenges would not be very likely to succeed.  If they did, however, the short-term win for the challengers may hamper efforts to pass other tax legislation in the future.  A federalism challenge may be particularly damaging to Democrats, who rely on federal tax revenue to fund progressive programs.

 

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Sources Cited

Smyth, Albert Henry (1907). The Writings of Benjamin Franklin, Vol. X (1789-1790). New York: MacMillian. p. 69.

Michael C. Dorf, The New Tax Law Punishes Blue States: Is That Constitutional?, Verdict (Dec. 27, 2017).

Ben Casselman, Democrats in High-Tax States Plot to Blunt Impact of New Tax Law, The New York Times (Dec. 31, 2017).

Debra Cassens Weiss, Does Tax Bill Violate the Constitution by Treating Residents of High-Tax States Differently?, ABA Journal.com (Jan. 4, 2018).

Jimmy Vielkind, In State of State Speech, Cuomo Vows to Sue Federal Government Over Tax Bill, Politico (Jan. 3, 2018).

Stephen Gardbaum, Is the GOP Tax Law Unconstitutional?, San Francisco Chronicle (Dec. 22, 2017).

US Tax Bill May Face Lawsuits from High-Tax States with Long Odds but Political PayoffsReuters, (Dec. 21, 2017).

Photo courtesy of US News & World Report.

Reevaluating Cross-Racial Identification: NY Juries To Be Informed of Potential for Inaccuracy

Written By Caitlyn R. Buckman

 

On December 14, 2017, New York’s highest court ruled that trial courts are required, upon request, to give a jury instruction on the “cross-race effect” in criminal cases via People v. Boone. In other words, where a witness’ identification of a defendant is at issue, and the two parties appear to be of different races, juries need to be informed of the potential for inaccuracy.

Background

The case arose from a pair of robberies in 2011, where two white men both had their cell phones stolen in a Brooklyn neighborhood. Both victims described their attacker as a six-foot tall, African American man. Otis Boone, a man matching that general description, was suspected of the crimes. Boone was placed in a six-person lineup, where both victims separately identified him as the perpetrator, although the second victim was unsure until he heard Boone speak. Boone was then charged with two counts of robbery, though no physical evidence connected Boone to the crimes. Neither of the cell phones were recovered.

At trial, the court denied defense counsel’s request for a jury instruction regarding cross-racial identification, reasoning that there had been no expert testimony concerning its lack of reliability. The jury was instead given an expanded charge on eyewitness identification, and Boone was found guilty of both counts.

Boone appealed, arguing that he was denied a fair trial through the trial court’s refusal to instruct the jury on the imprecision of cross-racial identification. The Appellate Division disagreed, noting that Boone had not placed the issue of cross-racial identification into evidence during the trial. The case then went to the Court of Appeals, which reversed, finding that the trial court abused its discretion in refusing to give the requested jury charge.

How Reliable is Cross-Racial Identification?

Eyewitness testimony in general has faced scrutiny with regard to its reliability, as the Innocence Project has estimated that, nationwide, eyewitness misidentification has contributed to more than 70% of convictions later overturned by DNA evidence.

Research suggests that eyewitness identification might be particularly inaccurate where the witness and the defendant are of different races. This “cross-race effect” asserts that people of all races tend to have difficulty distinguishing between members of races other than their own.

Court of Appeals Ruling

 In taking up Boone’s case, the Court discussed, at length, mistaken eyewitness identifications and the cross-race effect, noting that it has been recognized by trial courts in New York State and is “generally accepted” by experts in the field. Recognizing that the average juror is likely unfamiliar with the cross-race effect, and that expert testimony on the subject might be inadequate, the Court’s majority reached the following holding:

• where a witness’ identification of the defendant is at issue, and the two parties appear to be of different races,

• a court is required, upon request, to instruct the jury to consider whether the identifying witness and the defendant are of different races,

• and if so, to consider that some people have a greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race,

• and to consider whether the difference in race affected the accuracy of the witness’s identification.

In Associate Judge Michael Garcia’s concurrence, he expressed concern that the Court’s new rule will create confusion and hinder the discretion of trial courts. Maintaining that the trial court is in the best position to evaluate the evidence, Judge Garcia argued that the decision to deliver a jury instruction on the cross-race effect should remain within the trial court’s discretion.

What Does This Mean Going Forward?

Some supporters of the new rule say that it will help curb the number of wrongful convictions, which disproportionately affect African American men. Opponents, however, argue that sufficient safeguards already exist to protect against convictions based on faulty eyewitness testimony, including the trial court’s authority to exclude such evidence where its probative value is outweighed by prejudice to the defendant, as well as the defendant’s ability to cross-examine an identifying witness. 

In total, the new rule handed down by the Court of Appeals is vague in some respects. For example, what is the standard for determining whether an identifying witness and a defendant “appear” to be of different races? An answer was not provided. The Court also failed to provide any criteria for determining whether the witness’ identification of the defendant is “at issue[.]” Accordingly, trial courts will likely choose to provide the instruction upon request, even in ambiguous cases, out of concerns with getting reversed.

The result is also unclear if defense counsel fails to request the cross-racial identification instruction when it is available. There, a defendant who ends up with a conviction may appeal on the grounds of ineffective assistance of counsel. If so, prosecutors may wish to request the instruction themselves to avoid a potential reversal on appeal.

Conclusion

While it is too early to tell what practical effect the Court’s decision will have on the prevalence of wrongful conviction based on eyewitness misidentifications, it is a noteworthy development in the law that will likely affect trial strategy for both criminal defense attorneys and prosecutors.

 

 

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Sources Cited

Ashley Southall, To Curb Bad Verdicts, Court Adds Lesson on Racial Bias for Juries, N.Y. Times (Dec. 15, 2017).

Eyewitness Misidentification, The Innocence Project.

Josefa Valasquez, Courts Required to Instruct Juries on Cross-Race Witness IDs, NY L. J. (Dec. 18, 2017).

People v. Boone, _NE 3d_, 2017 LEXIS 3722 (N.Y. 2017).

Rob Rosborugh, Court of Appeals Holds Trial Judges Must Give Cross-Racial Identification Jury Instruction in Almost Every Case, N.Y. Appeals.

Steven Ross Pomeroy, ‘They All Look Alike’: The Other-Race Effect, Forbes (Jan. 28, 2014).

Photo courtesy of KVNO News.

Pennsylvania Court Rules Judges Should Not Simply Divide Liability Equally Among Defendants

Written By John Joslin

On December 28, 2017, a three-judge panel of the Pennsylvania Superior Court decided in Roverano v. John Crane, Inc. that the Fair Share Act applies to asbestos litigation. The Fair Share Act (Act) holds defendants responsible for a percentage of the pay for which they are found liable. Judge Alice Dubow, Judge Kate Ford Elliott, and Judge Carl Solano rejected arguments that the Act would not apply to strict liability claims, when apportioning liability among multiple defendants.

Background

William Roverano, a former PECO Energy employee, and his wife, Jacqueline Roverano, sued multiple defendants, claiming William had been exposed to asbestos-containing products, which ultimately caused him to develop lung cancer.

The verdict sheet listed eight joint tortfeasor co-defendants. The defendants sought a ruling by the trial court that, if any liability were to be found, the jury would, in turn, be required to apportion liability to the extent of each defendant’s percentage of harm caused.

The trial court judge refused to apply the Act to the case, leaving the jury without guidance as to how much each co-defendant should contribute to the overall award. Consequently, the judge divided the jury’s award of $6.3 million equally, assigning one eighth of the payment of the overall award to each of the eight co-defendants.

One of the co-defendants appealed the trial court’s decision, arguing that under the Act, the jury should have apportioned the award by the percentage of liability for each co-defendant. In making this argument, the co-defendant argued for the plain meaning of the text, interpreting the Act to require the jury to apportion the liability, not the court. William, on the other hand, argued that the Act should not be applied to strict liability cases (which do not involve determinations of fault) in the same way that it is applied to negligence cases.

Fair Share Act

Before the enactment of the Fair Share Act, any joint tortfeasor found merely one percent liable could be held responsible to pay the entire verdict award, regardless of the percentage of fault for the other co-defendants. However, a joint tortfeasor who paid more than his or her proportionate share would have a right of contribution against a co-defendant who failed to pay their proportionate share.

The Act changed the law so that individual defendants are only responsible to pay for the percentage they are found liable, subject to only a few exceptions. These exceptions include intentional torts, intentional misrepresentation, hazardous substance releases, and “dramshop” liability. Additionally, an individual defendant can only be made to pay the full award if they are found more than 60 percent responsible for the wrong or injury.

As its name implies, the main purpose of enacting the Fair Share Act was to promote fairness. Determining precisely whether this Pennsylvania Superior Court ruling is fair, however, remains to be seen.

In the context of this case, those in favor of apportionment and the Act may assert that it is unfair for a defendant, who has a minor degree of fault as compared to that of the other defendants, to have to fully compensate the plaintiff if the other defendants cannot. They may argue that the joint and several liability system encourages plaintiffs to unfairly target those defendants who are known to have the means to fully compensate the plaintiff, far beyond what is actually owed by that defendant.

Proponents of maintaining the joint and several liability system, however, may make an argument that this ruling is fair. Supporters may assert that it would be unfair to shift to the plaintiff the risk of a co-defendant’s inability to pay the damages, in addition to having been left undercompensated. Consequently, they may argue this risk should be shifted to the other defendant(s) because they, too, are at fault, and it would be unfair to require a plaintiff to seek individual recovery from each defendant in a lawsuit based on the proportion of fault.

Superior Court’s Decision

The Superior Court found that the trial court erred as a matter of law by refusing to apply the Act.

“This was an action to hold Appellants strictly liable in tort for injuries allegedly caused by asbestos-containing products that they made or distributed,” the Court opined, “and the Fair Share Act explicitly applies to tort cases in which ‘recovery is allowed against more than one person, including actions for strict liability.’ Nothing in the statute makes an exception for strict liability cases involving asbestos.”

The plaintiffs had stated that the Act was silent on how liability among strictly liable joint tortfeasors is to be apportioned, and they argued the omission revealed that apportionment was meant to continue on a per capita basis. The Superior Court, however, stated the law clearly applies to tort cases involving multiple defendants, including strict liability cases, opining that the legislative history indicates the law intended to do away with per capita apportionment. “We, therefore, conclude that liability in strict liability cases must be allocated the same way as in other tort cases, and not on a per capita basis.”

The Superior Court remanded the case for a new trial on the question of apportionment liability.

Conclusion

Trial courts struggling with how to apportion liability against defendants in strict liability cases now have a bit of guidance after this decision by the Pennsylvania Superior Court. A liable defendant will only need to pay his or her share of the judgment, not the entire amount, unless one of the few exceptions applies.

Alongside the majority of jurisdictions, this decision bolsters Pennsylvania’s position on awards, which no longer follows the once-common joint and several liability system.

 

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Sources Cited

Andrew Ralston, Jr., The Fair Share Act Impacts the Strategic Planning of a Jury Trial, WhiteandWilliamsLLP (May 5, 2017).

Fair Share Act, 42 Pa.C.S. § 7102 (a.1)–(a.2)

Max Mitchell, Superior Court Applies Full Force of Fair Share Act to Strict Liability, The Legal Intelligencer (Jan. 2, 2018).

Roverano v. John Crane, Inc., 2017 Pa. Super. LEXIS 1110 (December 28, 2017)

Steptoe & Johnson, PLLC, PA Superior Court Answers Question of Whether Fair Share Act Applies to Strict Liability Asbestos Claims, JDSUPRA (Jan. 3, 2018).

Photo courtesy of Modern Restaurant Management.

Closed Chambers: Sexual Misconduct in the Federal Judiciary

Written By Nicolette J. Zulli

 

“Does this kind of thing turn you on?” Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit allegedly asked his law clerk, Heidi Bond, while showing her a pornographic photo on his computer screen.

“No,” she responded, later explaining in a blog post that she remembers “feeling that [she] needed to not move, either physically or emotionally, that if [she] just treated this like this was normal it would stay normal and not get worse.”

Background

Bond is one of several law clerks that have come forward – either anonymously or on-the-record – with allegations against Kozinski. In addition to Bond, law clerks and externs in the Second Circuit also came forward with allegations.

The Ninth Circuit commenced an investigation in early December of 2017, until the Chief Judge of the Ninth Circuit, Chief Judge Sidney Thomas, petitioned Supreme Court Chief Justice John Roberts to transfer the complaint and investigation to another Circuit to ensure confidence in impartiality. Chief Justice Roberts agreed, and the investigation and complaint were transferred on December 15, 2017, to the Second Circuit. Pending the inquiry into Kozinski’s conduct by the Second Circuit, Kozinski resigned from the bench on December 18, 2017.

A National Conversation

In the wake of Kozinski’s resignation, the federal judiciary has been thrust into the ongoing national conversation surrounding workplace sexual harassment and necessary reform measures. However, unlike the cases of powerful executives, such as Harvey Weinstein, or even Congressional leaders, like Senator Al Franken, a case of sexual harassment by a federal judge is a breed of particularly insidious abuse. This is, in part, due to the “open secret” nature of the law clerk-judge relationship, as well as the use of the doctrine of judicial confidentiality as a shield.

With this, the problem becomes the type of environment that is fostered in the judge’s chambers. If a harassing or abusive environment develops, it lends itself to potential claims of “judicial confidentiality” for personal misconduct in the course of a judge’s official duties. Unfortunately, there is no means of directly addressing this at the moment, as there are no individuals or institutions currently set up to specifically review whether the claimed-confidential information is actually “confidential” or not, as well as what the motive is for claiming that “confidentiality.”

Consequently, in devising an effective means of addressing these issues, preventative measures against abuse and sexual harassment in the federal judiciary should try to provide a way for complainants to safely pierce the veil of constitutionally-derived tenants of judicial confidentiality.

Revising the Handbook

The issue the Kozinski Scandal has presented in the court of public opinion is whether the federal judiciary is currently equipped to handle sexual harassment. A large group of current and former law clerks and law professors have answered with a resounding “No.”

Prior to Kozinski’s resignation, the language of the Law Clerk Handbook read as follows:

“Law clerks should be careful about publicly discussing their judge and chambers-related activities beyond case-related matters. For example, clerks should not publicly discuss their judge’s personal views about political, social, or other matters that could arise in litigation, nor should clerks reveal a judge’s travel plans. In general, clerks should respect and protect the privacy of their judge.”

This language did not make clear that confidentiality rules do not protect sexual harassment complaints against judges. Consequently, on December 18th, the same day as Kozinski’s resignation, the Federal Judicial Center revised the Law Clerk Handbook (Handbook) to address sex harassment complaints against judges. To achieve greater clarity, the revision qualified the above cited Handbook section with, “However, nothing in this handbook, or in the Code of Conduct, prevents a clerk, or any judiciary employee, from revealing misconduct, including sexual or other forms of harassment, by their judge or any person. Clerks are encouraged to bring such [harassment] matters to the attention of an appropriate judge or other official.”

Two days after the revision was added to the Handbook, 695 people – including 480 former judicial clerks, 83 current clerks, and 120 law professors – signed off on a letter to Chief Justice Roberts and other key members of the judiciary, calling for several changes to the federal judicial system that would better address possible sexual misconduct moving forward.

While there already exists a formal system to handle misconduct complaints against federal judges, it is a frail one. Employees are often not informed about reporting procedures and may not be sure if their complaints rise to a level that warrants reporting. Moreover, once a complaint is filed, a chief circuit judge must decide whether to appoint a special committee of judges to investigate, and if warranted, issue sanctions.

In addition to all of this, the Handbook neither specifies what constitutes “sexual harassment” or “misconduct,” nor details how to report it. The letter to Chief Justice Roberts states that “in the past, clerks have been told to report any harassment to their judge.” The problem, of course, is if the perpetrator happens to be the judge the clerk must report the harassment to.

To remedy these flaws, the letter to Chief Justice Roberts proposes six things: (1) [further] reforms to the Handbook to provide clarification and guidance on handling sexual harassment, (2) revisions to the Code of Conduct for Judicial Employees, (3) that issues regarding harassment, confidentiality, and avenues for reporting misconduct be addressed with all law clerks during law clerk orientation, (4) the development of a confidential national reporting system, (5) that the federal judiciary take steps to reassure individuals who are considering reporting accounts of sexual misconduct or harassment against a fear of retaliation, and (6) the establishment of a working group of judges, current and former law clerks, and judiciary employees to further develop ways to address these issues.

What’s at Stake with Policy Reform

In addressing sexual harassment policy changes, it is notable that, unlike the shorter duration of status enjoyed by C-Suite executives and senators, federal judges have life tenure under Article III of the Constitution. Moreover, less than 20 federal judges throughout U.S. history have been removed through impeachment. These facts and circumstances suggest that the position of power afforded a federal judge is somewhat more “unfettered” than not.

Moreover, while career clerks are more long-term and cover a wide range of ages and experience levels, term clerks are typically younger, more inexperienced attorneys. All clerks generally work in close-quarters with their judges. In addition, within the legal profession, clerkships are considered one of the more prestigious positions available to recent law school graduates, as they often open doors to higher-paying private sector jobs and higher-level public sector positions. Indeed, some federal judges (like Kozinski) are considered Supreme Court “feeder” judges, where they are known to facilitate opportunities for their former clerks to clerk with certain Supreme Court Justices. For all of these reasons, it is understandable why clerks’ concerns with sexual misconduct reporting and investigations in the federal judiciary call for swift action and redress.

There is also a significant power imbalance between judges and clerks, as well as other court staff, that further compounds the potential threat of abuse. This is not to say that other boss-employee relationships do not prescribe to the same fundamental power-imbalance. However, the nature of the federal judge-law clerk relationship is historically insulated through well-established internal safeguards.

Thus, the ironic reality presented by the Kozinski Scandal is this: All federal judges are charged with the ultimate constitutional duty to “interpret and say what the law is.” Some, unfortunately, abuse that very duty by imposing judicial confidentiality on their subordinates as a shield. This, in turn, allows some judges to commit emotional, physical, mental, and sexual abuse against their employees, with no standardized accountability.

Moving Forward

Members of the legal profession should back the implementation of the proposed measures in the letter presented by the 695 law clerks and professors sent to Chief Justice Roberts and members of the judiciary on December 20, 2017. Further, two challenges must be addressed in order to effectively implement the proposed reform measures presented in the letter: judicial confidentiality and judicial independence.

On December 21, 2017, Chief Justice Roberts called for a review of the federal judiciary’s procedures for protecting court employees from misconduct. He made this request as the letter was being circulated. Then, on December 31, 2017, Chief Justice Roberts, in his annual year-end report, stated that “the judiciary will begin 2018 by undertaking a careful evaluation of whether its standards of conduct and its procedures for investigating and correcting inappropriate behavior are adequate to ensure an exemplary workplace for every judge and every court employee.”

In addition, Chief Justice Roberts said he asked the federal judiciary’s director of the administrative office to form a working group to examine the courts’ practices and recommend necessary changes to codes of conduct, employee guidance on reporting misconduct and its own rules for investigating complaints.

From a practical standpoint, revisions to the Law Clerk Handbook and Code of Conduct for Judicial Employees, and requiring education on misconduct procedures to law clerks during orientation, are changes that can be made without much difficulty.

In contrast, the proposal of a national reporting system – a reform measure that stands to have the greatest impact – will likely be the most difficult to establish. The idea itself is akin to that of a Human Resources department in a corporation, or a Title IX Office on a college campus, both of which serve as watchdog entities that regulate corporate and campus abuse and sexual misconduct. The letter did not propose details on where the misconduct reports would be submitted and who or what entity would review the misconduct reports in such national system.

Moving forward into 2018, and following the completion of the judiciary’s evaluation, it will be of interest to learn whether the Third Branch is able to adopt some version of this proposed national reporting system that sufficiently balances concerns of preserving judicial confidentiality and independence against ensuring adequate workplace protections of clerks and employees of federal judges.

 

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Sources Cited

Brett Samuels, Fed. Law Clerks Demand Changes to Judiciary’s Sexual Misconduct Policies, The Hill, Dec. 20, 2017, http://thehill.com/blogs/blog-briefing-room/365938-federal-law-clerks-seek-changes-to-judiciarys-sexual-misconduct.

Yuki Noguchi, Sexual Harassment Cases Often Rejected by Courts, NPR, Nov. 28, 2017, https://www.npr.org/2017/11/28/565743374/sexual-harassment-cases-often-rejected-by-courts.

Richard Wolf, Prominent Fed. Appeals Court Judge Accused of Sexual Harassment Retires, USA Today, Dec. 18, 2017, https://www.usatoday.com/story/news/politics/2017/12/18/prominent-federal-appeals-court-judge-accused-sexual-harassment-retires/960662001/.

Dana Liebelson et al., Law Clerks Say Fed. Judiciary Isn’t Equipped to Handle Sexual Harassment, Huffpost, Dec. 20, 2017, https://www.huffingtonpost.com/entry/federal-court-clerk-sexual-harassment-judges_us_5a3acf5ae4b025f99e1449f8.

Ruth Marcus, Editorial, The Creepiest Sexual-Harassment Story We Aren’t Talking About, Wash. Post, Dec.15 2017, https://www.washingtonpost.com/opinions/the-creepiest-sexual-harassment-story-we-arent-talking-about/2017/12/15/8efee490-e1e1-11e7-bbd0-9dfb2e37492a_story.html?utm_term=.46f664da0bbe.

Debra Cassens Weiss, Revision to Fed. Law Clerk Handbook Addresses Sexual Harassment Complaints, ABA Journal, Dec. 19, 2017, http://www.abajournal.com/news/article/revision_to_federal_law_clerk_handbook_addresses_sex_harassment_complaints.

Joan Biskupic, Chief Justice Roberts Calls for Review of Procedures for Protecting Court Employees from Misconduct, CNN, Dec. 20, 2017, http://www.cnn.com/2017/12/20/politics/roberts-judicial-misconduct/index.html.

Dahlia Lithwick, He Made Us All Victims and Accomplices, Slate, Dec. 13, 2017, http://www.slate.com/articles/news_and_politics/jurisprudence/2017/12/judge_alex_kozinski_made_us_all_victims_and_accomplices.html?wpsrc=sh_all_dt_tw_top.

N.Y. Times Editorial Board, Who Will Judge the Judge?, N.Y. Times, Dec. 14, 2017, https://www.nytimes.com/2017/12/14/opinion/kozinski-sexual-harassment-resign.html.

The Doctrine of Judicial Privilege: The Historical and Constitutional Basis Supporting a Privilege for The Federal Judiciary, 44 Wash. & Lee L. Rev. 213 (1987), http://scholarlycommons.law.wlu.edu/wlulr/vol44/iss1/11.

Kathryn Rubino, Judge Kozinski Accused of Sexual Misconduct, Above the Law, Dec. 8, 2017, https://abovethelaw.com/2017/12/judge-kozinski-accused-of-sexual-misconduct/.

Heidi Bond, #MeToo: Kozinski, CourtneyMilan.com, http://www.courtneymilan.com/metoo/kozinski.html.

Valerie Volcovici, Chief Justice Orders Review of Sexual Harassment Standards in the U.S. Judiciary, Reuters, Dec. 31, 2017, https://www.reuters.com/article/us-usa-court-harassment/chief-justice-orders-review-of-sexual-harassment-standards-in-u-s-judiciary-idUSKBN1EP0MP

Staci Zaretsky, The Law Schools Where the Most Graduates Got Federal Clerkships (2016), Above the Law, May 30, 2017, https://abovethelaw.com/2017/05/the-law-schools-where-the-most-graduates-got-federal-clerkships-2016/.

Univ. of Wis. School of Law Board of Regents, What Are the Benefits of Clerking?, http://law.wisc.edu/career/whywouldiwanttoclerk.html.

Dist. of Fla., Clerkships and Internships, http://www.flsd.uscourts.gov/?page_id=269 (last updated 2017).

Stephanie Francis Ward, Lucky 36: What It Takes to Land a Supreme Court Clerkship, ABA Journal, Oct. 1, 2012, http://www.abajournal.com/news/article/podcast_monthly_episode_31.

Judicial Conference of the United States, Comm. on Codes of Conduct, Maintaining the Public Trust: Ethics for Fed. Judicial Law Clerks 1–2 (4th ed. 2013).

Photo Courtesy of Toledo Blade.

December 2017: Darren Miller (’07)

Darren Miller, a partner at Nixon Peabody, was not the traditional law student. Yet, his path from classroom to conference room prepared him to be a successful and well-versed attorney.

Born and raised in Scotland, Darren suffered a tragedy at a young age when he lost his father in the Piper Alpha Oil Platform Disaster, and through the ensuing Public Inquiry, was introduced to the law. Family and friends alike told him he’d make a great lawyer someday, and Darren was sure he’d prove them right.

Darren Miller
Partner at Nixon Peabody

Darren first came to the United States at the age of 16 through an exchange student program, spending his senior year of high school in upstate New York, where he met his eventual wife, Aedria. Deciding to stay in the U.S. for good, he enrolled at Binghamton University, where he majored in political science and gained valuable work experience in the legal department of a life insurance company.

Upon graduation in 2004, Darren prepared for his legal education at Syracuse University College of Law, where he would join Syracuse Law Review for Volumes 56 and 57. His Note, inspired by his journey toward American citizenship, was entitled “Terminating the ‘Just Not American Enough’ Idea: Saying ‘Hasta La Vista’ to the Natural-Born-Citizen Requirement of Presidential Eligibility.” Darren’s Note was selected as the number one Note in 2006 and was published in Volume 57.

During his 3L year, Darren served as an Associate Notes Editor for Law Review, helping 2Ls with their Notes and research processes. Darren credits this experience with helping him to develop an unbridled attention to detail, to realize the importance of networking, and to appreciate how valuable research and writing are in the legal field.

“Attention to detail is crucial as a lawyer,” Darren said. “The placement of a comma or the wording you choose can mean the difference between a positive or negative result for your clients.”

While in law school, Darren tapped into a variety of his legal interests, but he always kept an open mind. He knew he loved the law, but he wasn’t quite sure what area of law would be the best fit, with the exception of transactional versus litigation. That, he jokes, he came to decide between very quickly.

“In my first year, we had oral arguments in our Legal Research and Writing classes,” he said. “I was paired against one of my good friends, and she was first in the class at the time. She bested my argument on all counts and handed me a lesson that I wouldn’t forget! I knew, at that moment, I was never going to be one of the courtroom lawyers I saw on television!”

That valuable lesson steered Darren to accept internships and experiences that would ultimately shape his career path and lead him to where he is today.

His first summer, he worked with a small firm in Binghamton, New York, where he dabbled in criminal law and gained plenty of writing experience. The second summer, he found himself at Nixon Peabody in Rochester, New York. It was there that Darren began what has become an exciting and fulfilling career, receiving a job offer from Nixon Peabody at the close of the summer.

After accepting the offer, it became a question of where to place Darren in the firm, as the summer program utilized a rotating-department system.

“They said, ‘What do you think about real estate?’ To be honest, I’d never really thought about it before!” Darren said. “That’s where I started, though, and I’ve really enjoyed building my career with a fantastic group of real estate lawyers in Nixon’s Rochester office and across the country. I didn’t begin to focus on construction law until I was a second- or third-year lawyer, when a couple of departures from the firm opened up an opportunity to learn a niche area of the law. I’ve been really fortunate to learn from a fantastic mentor who really invested a lot of time to teach me this field.”

Darren said that although his practice area choice may appear “happenstance,” a life of “happenstance” prepared him well for that moment—from being an exchange student, to meeting his wife and moving to the U.S. permanently, to taking the summer associate position at Nixon Peabody.

“I think the take home lesson is that being a lawyer always changes,” he said. “You have to be willing to learn something new, to modify your plan. Take the recent changes to the tax code as an example. Many of the changes proposed would have fundamentally changed the nature of tax practice for a number of lawyers at Nixon and elsewhere. Changing circumstances are all part of the job. That’s all a part of lawyering. Being able to pivot and adapt is a fundamental skill necessary for all lawyers.”

Through it all, however, Darren said that work ethic, building strong personal and professional networks, and being open to experiences that will help you grow are all great ways to propel your career forward.

“You don’t have to have a perfect plan,” he said. “I know, as lawyers, we’re all ‘Type A’ people who feel we need to have a path and a plan, but sometimes you don’t need to be so focused on that. The more important thing is whether you can adapt, go with the flow, and take a job that will give you experience to get you to the next level. You have to let yourself be free to explore options.”

Darren’s hard work and open mind have certainly provided him just that: experience that has helped him arrive at the next level. Now a partner (as of January 2017) in the very firm where he got his start—in addition to being named to the Legal 500 list, the Super Lawyers Magazine’s “Upstate New York Rising Stars” for four years, and one of The Daily Record’s “2014 Up & Coming Attorneys”—Darren’s career is an exciting one.

Beyond the recognitions, the new partner position, and the more than ten years in the business, Darren said he loves that a profession like the law also allows him to give back and be a part of something bigger than himself.

“I’ve been a part of a number of great projects as a real estate and construction attorney,” he said. “I help build breweries, museums, shops, and apartment buildings, all of which are important in their own right. But, I’ve also been able to work on some great projects that do so much good for people really in need.

“When I started ten years ago, for example, we started working with a service provider to build a safe space for domestic violence victims. There were a lot of twists and turns along the way, but finally, last year, the building was completed. It was a thrill to attend the grand opening of a building that is a tangible representation of my career to date and, more importantly, fills such an important need for the community it serves. I received a great deal of personal satisfaction from working on that project in particular.”

From ‘happenstance’ to ‘making it happen,’ Darren continues to shine in his field and excel in his craft. We’re certainly excited to see where he goes next!

 


This story was written by Legal Pulse Editor Samantha Pallini and is the sixth installment of Syracuse Law Review’s new monthly feature, “Alum of the Month.” Stay tuned for next month’s feature on another noteworthy Syracuse Law Review alumnus.