It’s All Political: Minnesota Voters Alliance v. Mansky

Written By Sara D. Lupi


“So somebody goes to the polling place and is wearing a shirt, doesn’t say anything about a candidate or a ballot issue, but a particular election judge, one of these people picked by one of the two parties, says, oh, that’s political . . . so now this person has a choice.  The person can wear a bathrobe or some kind of coverup to go in and vote . . . Or the person can be listed as a bad Minnesotan and, at some point down the road, potentially fined $300, found to have committed a petty offense.”  – U.S. Supreme Court Justice Samuel Alito


During the November 2010 election, Petitioner Andrew Cilek entered his designated polling place in Hennepin County. He was wearing a “Please I.D. Me” button and a Tea Party t-shirt with the message “Don’t Tread on Me” and a Gadsden Flag.  Cilek twice tried to enter the polling place, and on each attempt he was told that he either needed to cover his t-shirt and button, or take them off in order to vote. He refused.  On his third try, Cilek was allowed to vote, but the election judge wrote down his name and address for potential prosecution.

Pursuant to Minnesota election law, Section 211B.11, all political apparel is banned inside a polling place, including political badges, political buttons, or other political insignia.  Campaign-related material promoting specific candidates is prohibited, as well as material “designed to influence and impact voting (including specifically the ‘Please I.D. Me’ buttons)” and “[m]aterial promoting a group with recognizable political views (such as the Tea Party, MoveOn.Org, and so on).”  Election judges at each polling place determine whether an individual is in violation of the statute.  Those in violation are asked to remove the materials or to cover them up.  Those who refuse to comply are still allowed to vote, but their names are recorded for potential prosecution.

Cilek, along with his organization, the Minnesota Voters Alliance (together, Petitioners), filed a lawsuit claiming Section 211B.11 violated the First Amendment, both facially and as-applied.

The District Court dismissed Petitioners claims, and on appeal, the Eighth Circuit upheld the ban against Petitioners’ facial claim and reversed the district court’s dismissal of the as-applied claim, remanding it back to the district court.  Petitioners filed their first petition for a writ of certiorari, which was denied by the Supreme Court, and the case proceeded in the lower courts, where the as-applied challenge was rejected again.  Petitioners then filed another writ of certiorari, limited to the facial challenge.  The Supreme Court granted writ and heard oral arguments on February 28, 2018.


In Burson v. Tennessee, the Supreme Court upheld a section of the Tennessee Code which prohibited solicitation of votes and the display or distribution of campaign materials within 100 feet of entrance to polling places.  The Court found the code section to be narrowly tailored to serve the compelling state interest of protecting the right of its citizens to vote freely and effectively.

Petitioners’ Oral Arguments

Counsel for Petitioners began their argument by clarifying that the only question before the court was whether Section 211B.11 of Minnesota election law violated the First Amendment’s overbreadth doctrine.  Petitioners asserted that the statute goes beyond prohibiting advocacy for a particular candidate or ballot issue and that it prohibits “self-expression of personal values and associations.”  Petitioners distinguished these facts from Burson by characterizing their display of political material here as “passive” rather than the “active campaigning” which was at issue in Burson.  Petitioners further acknowledged that the State’s interests in protecting a citizen’s right to vote are addressed by anti-intimidation statutes, and they made the argument that there is no “right to vote free of being bothered at all.”

Justice Anthony Kennedy posited the question of whether political speech should be allowed in polling places at all, since voters are there to vote and nothing else.  Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor built on this question, asking if a state could constitutionally limit any kind of political speech in a polling place, since it is not a public forum.

Respondents’ Oral Arguments

Counsel for Respondents began their argument by establishing that the State’s interest is to “protect the integrity of the elections[,]” which they intended to do “by preserving order and decorum in the polling place.”  The State’s position is that political material worn by voters might confuse and intimidate other voters.  The “test[,]” which Minnesota utilizes in determining if material is prohibited, is whether a “reasonable person would understand that the message that’s being delivered is one regarding electoral choices in the polling place.”

Justice Alito pointed out that in the current political climate, many things have a political implication; therefore, on election day, Alito mentioned how each voter would have to have knowledge of every candidate and every ballot question, thereafter determining if what they were wearing has a political connotation.  Counsel replied by pointing out that a reasonable person would only recognize those political messages that were “well known.”  In response to this, Justice Alito questioned Counsel as to whether rainbow flags on t-shirts would be permitted, or whether an NRA t-shirt would be permitted, as both could be linked to political issues.  Counsel responded that a rainbow flag would be allowed as long as there was not a question related to gay rights on the ballot.  However, an NRA t-shirt would not be allowed, as it has a “clear indication” that it relates to a political issue.

What’s Next?

Although Burson suggests otherwise, it is likely that the Justices will rule in favor of Petitioners, finding the statute not to be narrowly tailored.  As Justice Alito’s line of questioning suggests, in this political climate, many slogans and insignias can have a political connotation. Nevertheless, Respondent’s argument and reliance on Burson, that political material in the polling place could intimidate voters, is a valid state interest.  A decision is expected by June of this year, so we will have to wait a few months to find out if that interest is compelling, as well as whether Minnesota has narrowly tailored its voting laws to address that interest.


Sources Cited

Amy Howe, Argument preview: Justices to hear challenges to Minnesota voting dress code, SCOTUSblog (Feb. 23, 2018).

Amy Howe, Argument analysis: Justices debate decorum, line-drawing and “political apparel at the polls, SCOTUSblog (Feb. 28, 2018).

Amy Howe, Justices to hear challenge to Minnesota voting dress code: In Plain English, SCOTUSBlog (Jan. 22, 2018).

Burson v. Tennessee, 504 U.S. 191 (1992).

Petition for Writ of Certiorari, Minn. Voters Alliance v. Mansky (2017) (No. 16-1435).

Transcript of Oral Argument, Minn. Voters Alliance v. Mansky (2018) (No. 16-1435).

Photo courtesy of Pacific Legal Foundation.

USSF: Playing Monopoly or Soccer?

Written By Nick Constantino


The North American Soccer League (NASL) announced that it has canceled its 2018 season after it failed to receive a preliminary injunction, which would have prevented the U.S. Soccer Federation (USSF) from revoking NASL’s Division II status.


USSF is the official governing body of soccer in the United States. The U.S. professional soccer structure, organized by USSF, is split into three different divisions (I, II, and III), with I being at the top of the pyramid, and III at the bottom. Similar to the structure of the National Collegiate Athletic Association (“NCAA”), Division I status is the most desirable. NASL’s Division I status signifies the highest level of competition and overall status, with several competitive and financial benefits, including better positioning in international competitions and higher-quality sponsorships and television deals. Those benefits decrease along with the division level.

To meet Division I standards, USSF requires a league to have at least 16 teams, stadiums with a capacity of more than 15,000, and that a certain number of those teams be located in cities that have a population of at least 2 million people. Currently, and likely for the foreseeable future, Major League Soccer (MLS) is the only sanctioned USSF Division I league in the United States.

In contrast, to meet Division II standards, USSF requires leagues to have at least 12 teams, in addition to having teams located in the Eastern, Central, and Pacific time zones. As of this year, the United Soccer League (USL) is the only sanctioned Division II league, which is the reason for NASL bringing a lawsuit.

There are currently no Division III leagues recognized by USSF. However, two leagues are reportedly eying Division III status by 2020.

NASL Fights Back

NASL is a professional men’s soccer league with five teams headquartered in New York City. A group of teams founded NASL in late 2009. From its inaugural season in 2011, it was sanctioned by USSF as a Division II league. However, in August of 2017, USSF revoked NASL’s Division II status because the league fell short of the two requirements, as NASL prepared to host only 8 teams for the 2018 season, none of which were located in the Central time zone.

In response, NASL filed suit in the U.S. District Court for the Eastern District of New York. NASL also requested a preliminary injunction to preserve its Division II status while the court considered the underlying claims.

NASL argues that USSF’s joint financial ties to MLS represent a fundamental conflict of interest, resulting in an antitrust violation that interferes with U.S. Soccer’s independence in setting and applying their standards to NASL and other Division II sanctioning. This is because MLS and USSF are partners in Soccer United Marketing, a company with an estimated value of $2 billion. NASL argues that being corporate partners is motivation for USSF to deny NASL Division II status because USSF is protecting their corporate partner’s interests by not allowing a potential competitor to the MLS. Although NASL and MLS would not be direct competitors if USSF granted the NASL Division II status, the next ‘step up’ for NASL would be Division I status, consequently placing NASL in direct competition with MLS.

Hearing the Injunction

During the preliminary injunction hearing, NASL did not challenge the authority of USSF to establish divisional tiers or even promulgate standards for professional leagues, both issues potentially subject to antitrust regulation. Instead, NASL attempted to eliminate the standards it did not meet, arguing a concerted effort between USSF, MLS, and USL to effectively ‘crowd’ NASL out of the soccer market.

Under federal antitrust laws, a court may issue a preliminary injunction where a party shows (1) irreparable harm; (2) a likelihood of success on the merits of the original claim; (3) a balance of the hardships tipping decidedly in favor of the moving party; and (4) that a preliminary injunction is in the public interest. However, the court will only grant an injunction in a situation altering a result already decided (in this case, USSF revoking NASL’s division II status) “upon a clear showing that the moving party is entitled to the relief requested.”

Here, Judge Margo K. Brodia found that NASL would suffer “irreparable harm” upon losing its Division II status. She determined that NASL might even fold as a league or lose valuable investors if USSF revoked their Division II status. Both of those factors, she concluded, constitute “irreparable harm.”

She then found that the hardship NASL would suffer “tips slightly” more in favor of NASL, in comparison to the harm USSF would sustain by disrupting its regulatory authority, and that granting the injunction would not harm the public interest.

Despite all of this, Judge Brodia found that NASL failed to prove they were clearly entitled to the relief requested. She determined that, “despite the ample evidence of a conflict of interest between [USSF] and MLS, [NASL] fails to present sufficient evidence of undue influence in the actual standard-setting process.” Judge Brodia did not think that the conflict of interest between USSF and MLS influenced the decision to deny NASL’s status, rather, she found that NASL failed to meet Division II requirements due to their own fault.  Consequently, Judge Brodia denied NASL’s claim.

NASL appealed the ruling to the Second Circuit on December 15, 2017. In their appeal, NASL argued that the District Court abused its discretion in applying the preliminary injunction standard.

On February 23, 2018, the Second Circuit affirmed Judge Brodia’s decision.

What’s Next?

On February 27, 2018, NASL’s Interim Commissioner, Rishi Sehgal, announced that the league was cancelling its 2018 season and would be shifting its focus “to securing the longer-term advancement of soccer in this country, not only for the NASL, but for all soccer fans, clubs, and communities impacted by the USSF’s restrictions on competition.”

Just one week after the decision to cancel the upcoming season, NASL dropped down to just three teams. The New York Cosmos, Miami FC, and Jacksonville Armada will instead play this year in the National Premier Soccer League, a semi-professional competition not sanctioned by the USSF.



Sources Cited

NASL Staff, North American Soccer League Announces Cancellation of 2018 Season, NASL (Feb. 27, 2018).

Injunctive Relief for Private Parties, 15 U.S.C. § 26 (1914).

Otoe-Missouria Tribe of Indians v. N.Y. State Dep’t of Fin. Servs., 769 F.3d 105, 110 (2d Cir. 2014).

Anthony Gruppuso, NASL Cancels Complete 2018 Season After Court Ruling, ESPN (Feb. 27, 2018).

Jeff Carlisle, NASL Sues U.S. Soccer Directors Over Acting to Protect Interests, ESPN (Feb. 6, 2018).

Photo courtesy of

Georgia Tax Bill Clear for Takeoff While Second Amendment Grounds Delta’s Exemption

Written By Erika L. Simonson

Since the February shooting in Parkland, Florida, several companies have ended their relationships with the National Rifle Association (NRA). One corporation, Delta Air Lines, responded to the tragedy with an attempt to “remain neutral” in the national gun debate by removing its discount for NRA members. However, instead of removing itself from the gun debate, Delta found its company at the center of the conversation.


Seventeen students and adults were killed on February 14, 2018, when a lone gunman opened fire in Marjory Stoneman Douglas High School with an AR-15 assault rifle. According to The Guardian, this was the eighth shooting of the year in the United States to have resulted in a death or injury.

The nation’s response to Parkland was swift, led in part by the activism of some students present in the high school during the attack. Companies like Walmart, Kroger, L.L. Bean, and Dick’s Sporting Goods announced they would no longer sell firearms to anyone under 21 years of age. REI cut ties with Vista Outdoor, a company that manufactures guns and supports the NRA. MetLife, Hertz, Enterprise Holdings, and United Airlines ended discount programs for NRA members. Finally, Delta Air Lines also ended their NRA discount program in what they called an attempt to “remain neutral” in the national gun debate.

Action in Atlanta

While these companies’ actions were met with both applause and criticism nationwide, Delta became the center of attention for Georgia legislators. Within days of Delta’s statement about removing its NRA member discount and taking a neutral stance, the Georgia legislature struck down a jet fuel tax exemption that would have been lucrative for Delta, the state’s largest private employer.

Georgia began offering this tax break to a financially-struggling Delta after the recession in 2008. The state stopped offering that tax cut in 2015, but it was on track to reinstate it again this year. Days after Delta’s statement, however, the proposed tax break was killed in the Georgia Senate, following a push by Lieutenant Governor Casey Cagle. Georgia Governor Nathan Deal is expected to sign the tax bill, sans jet fuel exemption. This missed tax exemption opportunity for Delta will add up to nearly $50 million a year.

Delta and First Amendment Rights

The first free speech case involving a business was decided in 1952 in Joseph Burstyn v. Wilson, in which the Supreme Court of the United Stated (SCOTUS) struck down a New York law that forbid the commercial showing of any film deemed “sacrilegious.” In 1976, in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, SCOTUS created the “commercial speech doctrine,” which gave courts the power to strike down laws regulating the market and advertising of products with no artistic, political, or expressive component. More recently, in 2010, SCOTUS held in Citizen’s United v. Federal Election Commission that corporations have the same free speech rights as individuals under the First Amendment. This means that SCOTUS’ previous decisions on freedom of speech would also protect the right of corporations – including Delta – to engage in political speech, symbolic speech, and to be free from compelled speech. In consequence, several media outlets have accused Georgia of violating Delta’s First Amendment rights.

Media outlets often rely on the 2011 decision Sorrell v. IMS Health for support of a First Amendment violation. In that case, SCOTUS struck down a Vermont statute, the Prescription Confidentiality Act, that prohibited the sale or use of a doctor’s prescribing habits for marketing purposes. The Act was passed in response to several pharmaceutical companies using individual doctors’ prescribing habits without the doctors’ consent. SCOTUS held that content-based or speaker-based restrictions on non-misleading commercial speech regarding lawful goods or services should be subjected to heightened judicial scrutiny. This heightened level of scrutiny requires the government to demonstrate with greater certainty that its purposes could not be achieved by means that do not entail speech restrictions.

Therefore, while on its face, Georgia’s “retaliation” against Delta may seem like a violation of Delta’s free speech rights, there is uncertainty as to whether any case would get very far in the courts. This is because this case is distinct from Sorrell, as Georgia did not pass a law that infringed upon Delta’s free speech, rather, Georgia declined to pass a law at all. Further, the Georgia legislators provided seemingly sufficient non-speech reasons for the tax bill.


Atlanta is Delta’s largest hub, at three times the size of the next two busiest hubs. Delta is unlikely to move its corporate headquarters, as it would be costly to separate the headquarters and Delta executives from the busiest hub. Georgia is also inclined to keep ties with the airline, since the Atlanta airport – Hartfield-Jackson – remains the busiest airport in the world. Moreover, Delta employs more than 30,000 people in the state and contributes more than $43 billion to the state’s economy each year.

In consequence, this missed opportunity of a $50-million savings may just be a ‘drop in the bucket’ for Delta, who reported more than $41 billion in revenue last year. So, despite the loss of this exemption, it is not likely we’ll see Delta break ties with Georgia anytime soon. It remains to be seen whether a lawsuit, or hardline conversation, will be born of this controversy.




Sources Cited

Alana Wise, Georgia Lawmakers Kill Proposed Tax Break in Dig at Delta Over NRA Fight, Reuters (Mar. 1, 2018),

Citizens United v. Federal Trade Commission, 558 U.S. 310 (2010).

Danielle Weiner-Bronner, Why Delta and Atlanta Need Each Other, CNN (Mar. 1, 2018),

Jason Hanna, Faith Karimi and Emanuella Grinberg, Gunman Confessed to Florida High School Shooting, Police Say, CNN (Feb. 15, 2018),

Joseph Burnstyn, Inc., v. Wilson, 343 U.S. 495 (1952).

Julia Horowitz and Jackie Wattles, These Companies are Distancing Themselves From the Gun Industry, CNN (Mar 3, 2018),

Julie Creswell and Michael Corkey, Walmart and Dick’s Raise Minimum Age for Gun Buyers to 21, N.Y. Times (Feb. 28, 2018),

Lois Beckett, How Many U.S. School Shootings Have There Been in 2018 So Far?,  Gaurdian (Feb. 15, 2018),

Meagan Flynn, Boycott: REI, Mountain Equipment Co-Op Stop Selling Major Outdoor Brand with NRA Ties, Wash. Post (Mar. 2, 2018),

Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011).

Tiffany Hsu, ‘Our Values Are Not For Sale,’ Says Delta C.E.O. as Airline Considers Ending Divisive Discounts, N.Y. Times (Mar. 2, 2018),

Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).

Photo courtesy of Small Town Rules.

Rick Gates Pleads Guilty to Criminal Charges

Written by Lisa Knab



Rick Gates, a former campaign official for President Donald Trump, pleaded guilty to two criminal charges on February 23, 2018. The plea came less than 24 hours after a grand jury indicted him on a host of new charges.

With 32 total indictments, growing from the initial eight he faced as of October 2018, Gates sent a letter sent to family and friends. In it, he explained that despite his “initial desire to vigorously defend” himself, Gates made the decision to plead guilty in an attempt to protect his four children. In weighing a guilty plea against the costly and time-consuming process of proceeding to trial, Gates stated that he felt he would “better serve [his] family moving forward by exiting [the] process.”

The charges Gates pleaded guilty to include conspiring to defraud the United States and lying to the Federal Bureau of Investigation (FBI) when trying to secure an earlier plea deal. The conspiracy charge stemmed from an intense investigation, led by special counsel Robert Mueller, which uncovered what prosecutors allege to be a decade-long scheme. Prosecutors claim that Gates, led by long-time business partner Paul Manafort, laundered millions of dollars the pair made while working for a political party in Ukraine. According to the prosecution, the pair used the money to buy property and luxurious goods to support Manafort’s “lavish lifestyle.”

Manafort, who was also indicted on 32 charges, has maintained his innocence. In a statement made shortly after Gates’ guilty plea, Manafort stated that he “had hoped and expected [his] business colleague would have had the strength to continue the battle to prove [their] innocence.” Nevertheless, Manafort stated that Gates’ decision did “not alter [his own] commitment to defend [him]self against the untrue piled-up charges contained in the indictments against [him].”

The Plea Deal

As part of the deal, in exchange for admitting to conspiring to defraud the United States and lying to the FBI, the prosecution has agreed to drop various charges, including a forfeiture demand that, if convicted, could have made Gates liable for up to $18 million.

In addition, the deal provides that Gates will cooperate with Mueller and his associates in their continued investigation of Manafort. This is significant because, as Manafort’s long-time, right-hand man, Gates was trusted with information regarding Manafort’s alleged schemes.

Without the deal, and without considering the dropped charges, Gates could have faced up to 10 years in prison on the conspiracy and lying charges alone. However, under the deal, prosecutors have agreed that Gates will receive a recommended sentence of only four-to-six years, as well as a fine between $20,000 and $200,000. The final sentence will factor in Gates’ cooperation in aiding the investigation of Manafort.

Finally, Gates’ lawyer retains the right to advocate for an even lesser sentence based on Gates’ “disproportionate conduct” as compared to Manafort. A status hearing has been set for May 14, 2018, at which time the government will update the court on the status of the case, including Gates’ cooperation up until that point.

Cooperation and Additional Factors

While everyone following the investigations led by Mueller will likely have an opinion on the sentence Gates should receive, the final decision is in the hands of the judge. In addition to considering Gates’ cooperation and “disproportionate conduct,” the judge may consider various other mitigating or aggravating factors. An aggravating factor is a circumstance which would merit a greater sentence, while a mitigating factor is one which would support a lesser sentence.

As explained above, the judge will consider Gates’ cooperation when imposing a sentence. Depending on the actions of Gates in the coming weeks, this could serve as either a mitigating or aggravating factor. In other words, if Gates cooperates only minimally, the judge may view this as cause for a greater sentence. On the other hand, if Gates provides the government with a great deal of useful information concerning the activities of Manafort, the judge may view this as warranting a lesser sentence. Keeping in line with precedent, it is likely the judge will also consider any “disproportionate conduct,” any existence, or lack thereof, of a prior criminal record, as well as whether Gates feels genuine remorse.


While part of Gates’ plea deal includes a recommended sentence of four-to-six years, the actual sentence handed down is dependent upon factors weighed by the judge. The main factor for consideration will be his cooperation with the government in the investigation of Manafort. Therefore, it remains to be seen whether Gates’ actions, over the next few weeks, will play a key role in the fate of Manafort and/or mitigate the length of his own sentence.



Sources Cited

Aggravating and Mitigating Factors, JUSTIA (last visited Feb. 24, 2018).

Debra Cassens Weiss, Former Trump campaign aide Rick Gates pleads guilty in special counsel probe, ABA Journal (Feb. 23, 2018).

Devlin Barnett and Spencer S. Hsu, Former Trump campaign official Rick Gates pleads guilty to 2 charges, The Washington Post (Feb. 23, 2018).

Zoe Tillman, Former Trump Campaign Adviser Rick Gates Pleaded Guilty To Conspiracy And Lying To Investigators, BuzzFeed News (Feb. 23, 2018).

Photo created by a court artist, courtesy of VOA News.

Powerball Winner Fights to Remain Anonymous

Written By Meghan Vumback

 A New Hampshire woman (“Jane Doe”) who won a $559.7 million Powerball jackpot in January can begin collecting her money while a Judge determines whether she can remain anonymous.


Jane Doe purchased the Jan. 6 winning Powerball ticket at Reeds Ferry Market in Merrimack, New Hampshire . Upon realizing that the winning numbers matched the numbers on her ticket, she went to the Commission website and read the instructions on the back of her ticket. In following the Commission’s instructions, Jane Doe printed her name, address, city, phone number, and signed the back of her ticket. However, she was not aware that in doing so she was signing away her anonymity.

Upon retaining counsel, Jane Doe learned that the State of New Hampshire allows tickets to be signed by the trustee of a designated trust so that a winner can maintain privacy, and that in signing her name on the back of her winning ticket, she had relinquished her right to that privilege. Essentially, because she used her personal information, and not a designated trustee to sign the back of her lottery ticket, that information will become public once she submits her ticket to the Commission.

Oral Arguments

Jane Doe filed a complaint in the New Hampshire Superior Court in an effort to remain anonymous. Due to the size of her award, she is seeking to have her name, address, and other identifying information exempt from disclosure. She further requests that the Court authorize the winning ticket to be assigned to a trust that she has created for this purpose. Alternatively, Jane Doe requests that she be allowed to “white out” her name and replace the information with that of the trust she created.

Jane Doe is arguing that her privacy interests significantly outweigh the need for her information to become public. As a long-time resident of New Hampshire, and an engaged member of the community, she wishes to continue having the freedom to participate in community events and everyday activities without being targeted as the winner of half of a billion dollars.

The New Hampshire Attorney General’s office, which is representing the Commission, filed a legal response arguing that releasing Jane Doe’s information is consistent with New Hampshire’s Right-to-Know law, in which lottery tickets with the winner’s name, hometown, and prize amounts must be released.

The Attorney General’s office is asserting that the public’s right to know who won the nation’s eighth-largest lottery jackpot does outweigh Jane Doe’s minimal privacy interests. They argue first that failing to publicize her identity could erode trust in the lottery system. Second, they argue that the disclosure of a person’s name and hometown does not implicate substantial privacy interests.

What’s Next?

In order to make a determination on this case, the judge is going to have to look at the totality of the circumstances and balance the interests of both parties to determine which interest prevails: the privacy interests of Jane Doe, or the public’s interests in transparency in the operation of lottery games.

The $559.7 million Powerball jackpot is available for distribution and has been since January 22, 2018. Because Jane Doe has not yet submitted her ticket to the Commission, she is losing about $14,000 a day in interest. In consequence, a judge has allowed for the jackpot to be put into a temporary trust until a final ruling is made. It is unclear when Judge Charles Temple will decide the case.

“Regardless of whether the court ultimately decides in her favor, Ms. Doe has a strong interest in seeing this matter resolved as quickly as possible so that the prize can be claimed without further loss of interest.”



Sources Cited

Aric Jenkins, New Hampshire’s Attorney General to Powerball Winner: You Can’t Remain Anonymous, Time (Feb. 13, 2018).

New Hampshire Powerball Winner Argues for Privacy But to Also Receive Winnings, CBS (Feb. 13, 2018).

Cleve R. Wootson Jr., All she has to do to collect a $560 million lotto jackpot is make her name public. She refuses., The Washington Post (Feb. 13, 2018).

Maurice Kreis, Jane Doe vs. Right-to-Know in NH: A Tragedy in the Making, (Feb. 16, 2018).

Complaint For Declaratory Judgement and Injunctive Relief and Request for Immediate and Expedited Hearing as Time is of the Essence, Jane Doe v. New Hampshire Lottery Commission (Jan. 29, 2018).

Photo courtesy via WEAU 13 News.

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

Written by Stefani B. Joslin


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.



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.


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.



Sources Cited

Andrew Donovan, Onondaga County Blames Opioid Manufacturers and Distributors for Heroin Crisis, Files Lawsuit, (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, (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, (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



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.


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.



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.

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.


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.


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.


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.



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 (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.


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.


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.




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.