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.

Medical Marijuana: A Budgeted Controversy

Written By Jason Adelstone

 

Short-term medical marijuana (MMJ) protections expire with every new federal budget agreement. Consequently, MMJ enforcement and federal protections are currently being debated in states nationwide and in Congress.

Background

Since 1996, states have been enacting statutes to protect the medical use of marijuana. Forty-six states, plus the District of Columbia, currently acknowledge a variety of medical benefits stemming from the use of cannabinoids.  Four states – Kansas, South Dakota, Nebraska, and Idaho – have no form of MMJ protections. Due to this lack of consistency, the United States is a patchwork of various state MMJ laws and protections.

At the federal level, the federal government has not officially endorsed or prohibited MMJ, and Congress has been able to sidestep this type of legislation by introducing budget restrictions. These restrictions prohibit the Justice Department (DOJ) from using funds to assail legal MMJ users and distributors in states where MMJ is legal. With the rapid proliferation of MMJ, however, Congress may soon have to address the conflicting state laws, as well as the fact that the majority of United States citizens approve of MMJ use. This is bolstered by an August 2017 Quinnipiac poll, wherein 94% of respondents (both Democrat and Republican) supported the use of MMJ for adults as prescribed by a doctor.

In consequence, experts and professionals nationwide are exploring their options moving forward. This article highlights three of the long-term solutions Congress can take immediately, without overhauling federal drug policy.

Red Tape

One solution is for Congress to remove the red tape and permit research on cannabis, in addition to permitting broad investigations and testing into the true effects of the cannabis plant. This can be done by either removing marijuana as a Schedule One drug or by regulating protections for states.

In mid-December, U.S. Senator Orrin Hatch (R-UT) argued that the complex application process required to research MMJ is leading to longer wait times for researchers. This, in turn, leads to greater suffering by patients. According to ProjectCBD.org, “Scientific and clinical research—much of it sponsored by the U.S. government—underscores [cannabidiol’s] potential as a treatment for a wide range of conditions, including arthritis, diabetes, alcoholism, MS, chronic pain, schizophrenia, PTSD, depression, antibiotic-resistant infections, epilepsy, and other neurological disorders.”

This year, MMJ supporters, including U.S. Senator Mike Lee (R-UT) and U.S. Senator Kristen Gillibrand (D-NY), re-introduced the “Compassionate Access, Research Expansion, and Respect States Act,” which “would amend federal law to allow states to set their own medical marijuana policies.” The bill also removes the federal prohibition on Department of Veterans Affairs’ doctors from recommending MMJ to veterans for the treatment of serious injuries and chronic conditions.

Opponents in Congress, and U.S. Attorney General Jefferson Sessions (USAG), believe that cannabis is a “danger” and that the DOJ should have no restrictions on how it pursues prosecuting the use and distribution of MMJ. Despite their concerns with the costs associated with overseeing the operations, the USAG and the Drug Enforcement Administration (DEA) have agreed to expand MMJ research.

The Rohrabacher-Blumenauer Amendment

A second option is for Congress to remove the Rohrabacher-Blumenauer Amendment (RBA), which has been included in every federal budget agreement since 2014. The RBA prevents the DOJ from using funds to target patients, providers, and businesses involved in the processes surrounding the implementation and execution of MMJ laws, so long as those parties act within the confines of their state’s MMJ laws.

In December of this year, there was a new bipartisan call to continue protections for MMJ states. Sixty-six members of Congress requested of their colleagues that the RBA be included in the current budget agreement, which will expire January 19th, 2018. However, since the long-term effects of marijuana are still unknown, the USAG is attempting to persuade Congress to remove the RBA, so as not to restrict the DOJ from drug prosecutions during what he has called a “historic drug epidemic.” Until more research is completed on the effects of MMJ, and the DOJ’s authority is restored, it is likely that the USAG will remain cautious regarding the proliferation of MMJ among the states.

Employee Protections

A third solution comes via the Controlled Substances Act (CSA) and the Americans with Disabilities Act (ADA). Courts are split on whether state MMJ laws protect employees from adverse treatment by their employer.

In states like Colorado, Washington, and California, courts have held that the employer is not required to accommodate an employee’s use of medical marijuana outside of work hours. Since these state statutes do not include specific protections for the employee, the courts have held that businesses can choose to either comply with the state law or the federal law when it comes to hiring and firing employees. In other states, such as Arizona and New York, specific protections are in place for employees, wherein employers must treat MMJ usage like any other prescription medication or disability accommodation (with some narrow exceptions).

In contrast, a Connecticut District Court held this year that the CSA was not meant to be an employment act; therefore, an employer may hire someone, knowing that the individual uses MMJ, and it will not constitute a violation of the CSA. Additionally, that court opined that the state can increase protections to persons with disabilities. These legal decisions have created many questions of employer liability that may eventually call for Congress to settle the dispute.

Conclusion

While annual budget prohibitions on the Justice Department help in the short run, MMJ regulation needs a long-term solution, so that states can confidently invest in MMJ’s future or abandon it all together for other alternatives.

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Sources Cited

Aleta Labak, 66 Congress members make plea to extend protection for medical marijuana states, The Cannabist (Nov. 29, 2017).

Ariz. Rev. Stat. Ann. §36-2813(b) (2010).

Barbuto v. Advantage Sales and Mktg., 78 N.E.3d 37 (Mass. 2017).

Callaghan v. Darlington Fabrics Corp., 2017 R.I. Super. LEXIS 88 (May 23, 2017).

Coats v. Dish Network, 350 P.3d 849 (Colo. Ct. App. 2013).

Gonzales v. Raich, 545 U.S. 1 (2005).

Jeremy Berke, Jeff Sessions says it would be ‘healthy’ to have ‘more competition’ among medical marijuana growers for research, Business Insider (Oct. 18, 2017).

Kirsten Gillibrand, Senators Reintroduce Bipartisan Medical Marijuana Bill (June 15, 2017).

KSL.com, Sen. Orrin Hatch Slams ‘Regulatory Acrobatics’ Needed for Cannabis Research (Dec. 19, 2017).

Melina Delik, How Jeff Sessions Plans to End Medical Marijuana Before The Year Is Over, Newsweek, (Nov. 24, 2017).

Mike DeBonis and Erica Werner, Senate passes stopgap spending bill, allowing Congress to avert partial government shutdown, The Washington Post (Dec. 21, 2017).

 Noffsinger v. SSC Niantic Opperating Co., 2017 U.S. Dist. LEXIS 124960, *10-21 (D. Conn. Aug. 8, 2017).

N.Y. Protections for the medical use of marihuana Law §3369(2) (2017).

 ProCon.org, (Sept. 14, 2017).

Richard Wolf and Trevor Hughes, Justices won’t har Nebraska, Oklahoma marijuana dispute with Colorado (March 21, 2016).

Swaw v. Safeway, Inc., 2015 U.S. Dist. LEXIS 159761 (W.D. Wash. Nov. 20, 2015).

Tim Marcin, What Jeff Sessions Has Said About Marijuana, Newsweek (March 19, 2017).

What is CBD?, ProjectCBD.org, (last visited Dec. 21, 2017).

Photo courtesy of CNN.

Net Neutrality Explained: What Does It Mean for the Consumer?

Written By Alex Avakian

 

The Federal Communications Commission (FCC) voted to repeal net neutrality laws on December 14th. By a 3-2 vote, the decision, as explained by Chairman Ajit Pai, will help consumers by promoting competition and creating an incentive to build networks in underserviced areas.

Background

In 2015, under the Obama administration, and former FCC Chairman Tom Wheeler, the FCC passed a regulation that classified broadband services, like the internet, as a utility under Title II of the Telecommunications Act. This allowed the FCC to have broad powers to regulate internet service providers (ISPs).

The Telecommunications Act

In 1934, under its Commerce Clause authority, Congress passed the Telecommunications Act (Act), establishing the FCC. The FCC’s purpose was to have authority over radio and other telecommunication networks. Its purpose, or policy rather, was to prevent discriminatory practices by communications companies and provide access to these networks at a reasonable price.

In 1996, the FCC expanded the scope of the Act to cover broadcast television and the internet.  One of the main goals of the Act was to promote more competition by preventing monopolies. The networks were controlled by the big companies. For smaller ones to provide services to their users, primarily in rural, underserviced areas, they had to use the networks of the bigger companies. The Act served to ensure that bigger companies would not limit access to smaller ones, but instead, would provide them a network at a reasonable cost.

The Act also recognized that the internet played a major role in the way individuals worked, lived, and learned. Title II of the Act found it a United States policy, in pertinent part, to promote unbridled user control of the internet and to prevent similar discriminatory practices by ISPs.

Why Is There A Push For Net Neutrality?

A push for net neutrality stems from how the consumer uses the internet. With more traffic towards streaming and social media sites, ISPs know what the consumer wants. Without net neutrality, ISPs have the power to either help these high traffic companies succeed to the detriment of others, or to raise prices on these companies. ISPs know that these companies will pay to use their services, and the consumer will absorb those costs to access sites.

What Has Net Neutrality Done?

Under net neutrality, ISPs have not been able to discriminate by blocking apps or websites they deem unfavorable or contrary to their visions. If the content of the application or website is lawful, the ISPs have had no authority to control them. Title II recognized this as a user right.

Similarly, the providers have not been able to slow the transmission of data based on the nature of the content, and they have not been able to offer companies faster bandwidth to the detriment of other companies. Essentially, net neutrality has mandated that ISPs like Comcast and AT&T cannot discriminate between websites and the content of those websites.

What Could Repealing Net Neutrality Mean?

Under President Trump’s administration, which strongly supports less governmental regulation, the FCC repealed net neutrality. According to FCC Chairman Ajit Pai, this is better for the consumer because it creates more competition among ISPs and forces ISPs to strengthen their business in underserviced areas.

However, repealing net neutrality could also affect how the consumer accesses the internet. Consider the application SlingTV (Sling). Sling allows a consumer to watch TV, live or recorded, on a mobile or handheld device. To access Sling, a consumer pays for a package of channels, which range from basic to premium. Basic could contain channels like ABC and ESPN, whereas premium packages could contain Food Network and Spike. This is very similar to how cable television operates. A consumer can pay for a basic package of channels, or the consumer can upgrade to premium packages consisting of HBO and Showtime.

Without net neutrality, ISPs are not prohibited from creating similar payment structures and website packages. Hypothetically, an ISP could create a ‘social media package’ consisting of Facebook and Twitter, a streaming package consisting of Netflix and Hulu, and so on and so forth. In order to access both Facebook and Hulu, the consumer would have to either buy two packages – social media and streaming – or pay for more for a premium package that includes both.

In addition to website package-style deals, consumers also face the potential handed-down-costs of bandwidth speeds. Hypothetically, bigger content companies could pay for more bandwidth speed, which would then slow down access to other websites, while passing off the cost of the upgrade to the consumer.

To illustrate this even further, if ISPs did create these package deals, then if a consumer only purchased the social media package, and then typed “Netflix” in the URL, the consumer could receive a message that says, “You need to upgrade your package to access this website.”

Contrary to these points, FCC Chairman Ajit Pai stated that these hypotheticals were not the case before net neutrality, and there is no indication that something like this will happen without net neutrality. Indeed, FCC Chairman Pai said the FCC wants to return to the regulating times of President Bill Clinton, as he believes that the regulations currently imposed by net neutrality and Title II have been “particularly serious for smaller Internet service providers. They don’t have the time, money, or lawyers to navigate a thicket of complex rules.”

“Returning to the legal framework that governed the Internet from President Clinton’s pronouncement in 1996 until 2015 is not going to destroy the Internet,” FCC Chairman Pai said in a statement. “It is not going to end the Internet as we know it. It is not going to kill democracy. It is not going to stifle free expression online. If stating these propositions alone doesn’t demonstrate their absurdity, our Internet experience before 2015, and our experience tomorrow, once this order passes, will prove them so.”

While it may be too early to consider this the dawn of a new internet, it is something that should be monitored to know what is changing and how it impacts the consumer, both legally and financially.

 

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Sources Cited:

Cecilia Kang, F.C.C. Repeals Net Neutrality Rules, N.Y. Times (Dec. 14, 2017).

47 U.S.C. §§ 151, 230–232 (2012).

Keith Collins, Why Net Neutrality Was Repealed and How It Affects You, N.Y. Times (Dec. 14, 2017).

David Goldman & Jose Pagliery, Net neutrality is here. What it means for you, CNN (June 13, 2015, 1:11 PM).

Rebecca R. Ruiz, F.C.C. Sets Net Neutrality Rules, N.Y. Times (Mar. 12, 2015).

FCC Repeals ‘Net Neutrality’ Rules For Internet Providers, NPR (Dec. 14, 2017).

Photo Courtesy of Phone2Action.

REVIEW: Masterpiece Cakeshop v. Colorado Civil Rights Commission

Compiled By Lacey Grummons

On Monday, December 5, 2017, the Supreme Court heard oral arguments in the highly anticipated case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.

Background

This case stems from a 2012 incident, wherein Charlie Craig and David Mullins sought out cake artist Jack Phillips to design a cake for their wedding. Mr. Phillips, the Masterpiece Cakeshop owner, refused to make them a wedding cake on the basis that their same-sex marriage was contrary to his sincerely held religious beliefs. Mr. Phillips’ refusal occurred before any discussion of designs or words that would be on the cake.

Consequently, the couple filed discrimination charges pursuant to Colorado’s Anti-Discrimination Act, and the Colorado Civil Rights Commission issued a cease-and-desist order to Masterpiece Cakeshop. The Colorado Court of Appeals upheld that order.

Mr. Phillips argues that Colorado’s Anti-Discrimination Act, as well as the cease-and-desist order, are a violation of his First Amendment freedoms of expression and religious exercise. It is Mr. Phillips’ stance that, by declining to design and bake a cake for the couple’s wedding, he was exercising his constitutional right to refrain from artistic expression.

In contrast, the Commission has been arguing that designing a cake is not a form of expressive speech. In addition, the Commission has argued that the act of baking a cake does not necessarily constitute participation in, or the condoning of, a wedding celebration for a same-sex couple.

Cakes for same-sex weddings are not the only type of cake that Mr. Phillips has refused to make, however. He also does not bake Halloween cakes, divorce cakes, or adult-themed cakes. Further, Mr. Phillips did not refuse to serve the couple altogether, as he offered them any other cake or pre-made baked good he had in the store.

Since the lower court’s ruling, Mr. Phillips has stopped making wedding cakes.

Mr. Phillips’ Oral Argument

Some of the layers the court has to consider when making this decision are what constitutes expressive speech, and who is considered an artist. Mr. Phillips argues that he is an artist who intends to speak through his custom-designed cakes. Consequently, when he bakes, he “is painting on a blank canvas. He is creating a painting on that canvas that expresses messages[,]” and it, therefore, should be protected under the First Amendment. Mr. Phillips likens his cake designs to that of the work of other artists, such as painters and sculptors.

In oral arguments, Justice Elena Kagan outlined what she calls the “three axes” of the case. The first axis inquires about the possibility of a bright line rule and what that would look like in the context of civil rights cases. The second axis involves what persons the ruling should apply to. Specifically, Justice Kagan asked Mr. Phillips’ counsel, “Why isn’t it about race? Why isn’t it about gender? Why isn’t it about people of different religions?”  The third axis revolves around why this case is merely focused on weddings, and why this case’s outcome should not also apply to other events, such as funerals, Bar Mitzvahs, First Communions, anniversaries, and birthdays.

With regard to the first axis – an inquiry of significant focus throughout oral arguments – some of the examples of artistic expression that the justices inquired about included architecture, hairstyles, and flower arrangements. Justice Kagan asked Mr. Phillips’ counsel whether a hairstylist or a make-up artist could rely on his or her religious beliefs as a basis for refusing to provide services for a same-sex wedding. His counsel responded in the negative, arguing that doing someone’s make-up is not speech.

Building upon Justice Kagan’s concerns, Justice Stephen Breyer acknowledged the importance of asking such questions as Kagan’s in the Court’s search for “some kind of distinction that will not undermine every civil rights law.” Justice Sonia Sotomayor did the same, turning her attention to concerns with the creation of a ruling that could lead to a slippery slope of discrimination and hardship for the LGBT community, in addition to opening doors for other protected class issues.

Specifically, Justice Sotomayor provided the hypothetical of a same-sex couple on a military base, in a predominantly-Christian town. “[I]t may come to pass where the [only] two cake bakers [in town] will claim the same abstention [as Phillips has claimed],” Justice Sotomayor said. “So how do we protect the military men and women who are of the same sex who want to get married in that town because that’s where all their friends are, because the base is there?” Mr. Phillips’ counsel distinguished the hypothetical from the case at hand, arguing that such a situation could satisfy heightened scrutiny because “interests in providing access to goods and services would be narrowly tailored.”

The Commission’s Oral Argument

While the justices viewed much of Mr. Phillips’ oral argument through the lens of Justice Kagan’s three axes, the justices analyzed the oral argument of the Commission through the lenses of tolerance, accommodation, and context.

As to context, Justice Samuel Alito asked counsel about the context of a cake’s creation. For example, the Commission argued that just as you would have to sell a “Happy Birthday” cake to a “member of the Jewish faith,” you would also have to sell a “Happy Birthday” cake to “an African-American couple.” Justice Alito responded by asking, if Mr. Phillips were to sell a “November 9th, The Best Day in History” cake to a wedding anniversary couple, would he also then be required to sell a “November 9th, The Best Day in History” cake to someone wishing to celebrate Kristallnacht, a night in 1938 when Nazis attacked Jewish persons and their property? The Commission distinguished this hypothetical from the case at hand.

Regarding accommodation, Justice Anthony Kennedy addressed how it seemed to him that “the state … has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.” He questioned whether an issue of accommodation exists, as other bakeries were available to the couple.

Chief Justice John Roberts chimed in as well, asking if the results of this ruling would require, for example, Catholic Legal Services to provide legal services to a same-sex couple, despite sincerely held religious beliefs that do not support same-sex marriage. Colorado’s Solicitor General answered in the affirmative.

Moving Forward

A decision is expected from the Court in 2018, likely around the end of the Court’s term in June. Until then, the country will be engaged in vibrant debates in the court of public opinion.

 

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Sources Cited

Transcript of Oral Argument, Masterpiece Cakeshop v. Colorado Civil Rights Commission (2017) (No. 16-111)

Photo courtesy of MarthaStewart.com

Uber Data Breach: Where do we go from here?

Written By Shelby Mann

Uber admitted to paying hackers $100,000 for a 2016 data breach last week. This comes on the heels of several other mishaps, including an FTC order requiring the company to permit to up to 20 years of privacy auditing, prolific workplace sexual harassment, and drivers with criminal records.

Background

On November 21, 2017, Uber CEO Mr. Dara Khosrowshahi announced the company became aware of a data breach in late 2016. Khosrowshahi said while there wasn’t any indication “trip location history, credit card numbers, bank account numbers, Social Security numbers, or dates of birth were downloaded,” the two hackers did download files with information such as the names and driver’s license numbers of approximately 600,000 U.S. drivers, and personal information of 57 million Uber users. That personal information included names, email addresses, and phone numbers.

What Khosrowshahi did not include in the blog post was that the company paid the hackers $100,000 to keep the data breach secret and delete the stolen information. While the breach did not occur under Khosrowshahi’s leadership—Khosrowshahi replaced Uber co-founder Travis Kalanick as CEO in August 2017—Khosrowshahi reportedly learned of the breach in September 2017, just after he took over. Since discovering the breach, Uber’s chief security officer and a deputy were fired for the cover-up response to the hack.

Investigations

Uber announced the data breach a little over a week ago, but several parties are already launching investigations.

  1. On Monday, members of Congress asked the company several questions. Specifically, they asked why Uber didn’t inform customers sooner, whether the company spoke with law enforcement agencies about the matter, and what Uber is doing to help drivers whose sensitive data was stolen. Four Republican senators expressed concerns over Uber’s prior privacy issues, stating this is a serious incident that “merits further scrutiny.” They also asked Uber to provide a detailed timeline to Congress, including the “initial discovery of the incident, forensic investigation and subsequent security efforts, notifications to law enforcement agencies and regulators, as well as any notification to affected customers[.]”
  2. The Federal Trade Commission said it is also “closely evaluating the serious issues” surrounding Uber’s cover-up of the data breach. This comes after the FTC just penalized the company for misleading customers on privacy and security practices.
  3. Five states have separately announced plans to investigate. The attorneys general of Connecticut, Illinois, Massachusetts, Missouri, and New York, have announced they are examining the incident. The City of Chicago, in conjunction with the Cook County state’s attorney, is also suing Uber over the data breach, separately from the State of Illinois.
  4. Data privacy regulators in other countries, such as Italy, Mexico, and the UK, are also investigating. While the exact number of affected international users isn’t known, Uber did confirm the breach included international users.

Additional Lawsuits

Individuals are also suing the ride-hailing company. There are currently three lawsuits in California and Oregon, wherein the plaintiffs allege Uber was negligent in its failure to protect consumer data. The suits further claim having data compromised without a timely notice to harmed consumers. Each of these suits are suing Uber as part of a class action.

Legality of Uber’s Actions

Forty-eight states have laws requiring companies promptly notify consumers when their data is stolen. Alabama and South Dakota are the two who do not. Nevertheless, in many of those 48 states, theft of the Uber drivers’ license numbers would have required prompt public disclosure.

Further, many consumer protection laws in other countries also require disclosure of data breaches. Whether Uber expressly violated these laws will come to fruition following investigations being conducted around the world.

Uber has a couple of tools to use in the face of impending litigation and class-action suit. Arbitration clauses in contracts with drivers and passengers will be an obstacle for those seeking damages. In signing up for the app, users agree to waive their right to go to court. However, in citing the arbitration clause, state and federal regulators may be more likely to sue.

The success of class-action data breach litigation also turns on the type of information stolen. Uber claims only limited information – names, email addresses, cellphone numbers – was stolen, and outside forensic experts saw no indications of stolen sensitive personal information like credit card numbers, bank account information, or Social Security numbers. Further, there is not yet any evidence the stolen information was misused. Consequently, Uber may have a good defense in arguing that consumers cannot show the breach caused actual–or even likely–harm.

More information continues to roll out on a daily basis. It remains to be seen how this event, and other company data breaches like it, will shape the future of privacy laws and policies. For now, Uber users are encouraged to change their passwords, check their accounts for fraudulent activity, and set up credit monitoring just in case.

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Sources Cited

Letter from Sen. John Thune et al., to Dara Khosrowshahi, CEO, Uber (Nov. 27, 2017).

Letter from Sen. Mark Warner to Dara Khosrowshahi, CEO, Uber (Nov. 27, 2017).

Julia Apostle, The Uber Data Breach Has Implications for Us All, Financial Times (Nov. 27, 2017).

Chris Morris, Uber Hack: Here’s How to Find Out If You’ve Been Affected, Fortune (Nov. 22, 2017).

Andrew Blake, Uber Under Investigation in Several States Over Newly Disclosed Data Breach, The Washington Times (Nov. 23, 2017).

Jim Finkle & Heather Somerville, Regulators to Press Uber After it Admits Covering Up Data Breach, Reuters (Nov. 21, 2017, 5:37 AM).

Dara Khosrowshahi, 2016 Data Security Incident, Uber (Nov. 21, 2017).

Tom Krisher & Barbara Ortutay, Will Uber’s Data Breach Cover-up be the Final Straw for Its Most Loyal Users?, Time (Nov. 23, 2017).

Natasha Lomas, Uber Data Breach “Raises Huge Concerns,” Says UK Watchdog, TechCrunch (Nov. 22, 2017), https://techcrunch.com/2017/11/22/uber-data-breach-raises-huge-concerns-says-uk-data-watchdog/.

Natasha Lomas, Uber Agrees to 20 Years of Privacy Audits to Settle FTC Data Mishandling Probe, TechCrunch (Aug. 15, 2017).

Julia Love, Mexican Authorities Seek Information from Uber About Data Breach, Reuters (Nov. 26, 2017, 3:34 PM).

Tony Romm, Uber is Going to Have to Explain to Congress Why it Hid the 2016 Data Breach that Affected 57 Million Users, Recode (Nov. 27, 2017, 3:29 PM).

Hamza Shaban, Uber is Sued Over Massive Data Breach After Paying Hackers to Keep Quiet, The Washington Post (Nov. 24, 2017).

Diplomacy or Fake News: How Much Did Presidential Intervention Help LiAngelo Ball and His UCLA Teammates?

Written By Sam Hauser

Background

President Donald J. Trump engaged in a Twitter controversy on November 19, 2017, when he directed one of his tweets at LaVar Ball, the outspoken father of recently arrested UCLA freshman LiAngelo Ball. President Trump’s tweet read as follows:

“Now that the three basketball players are out of China and saved from years in jail, LaVar Ball, the father of LiAngelo, is unaccepting of what I did for his son and that shoplifting is no big deal. I should have left them in jail!”

This came after LaVar Ball refused to acknowledge President Trump’s role in the release of his son from Chinese custody, despite an earlier display of gratitude from LiAngelo himself. Aside from the fact that these players were not – in fact – in jail, but rather on house arrest in their Hangzhou hotel, numerous news outlets were quick to analyze the assertion that these players were headed for ten-year jail sentences absent President Trump’s intervention.

The Incident

On November 7, 2017, LiAngelo Ball, along with UCLA teammates Cody Riley and Jalen Hill, were accused of shoplifting Louis Vuitton sunglasses from a mall near the UCLA men’s basketball team’s hotel in Hangzhou, China. The three players were arrested, subsequently released on bail, and ordered to remain in their hotel until the conclusion of the legal process.

Presidential Intervention

President Trump, who happened to be on his way to China at the time of the incident, allegedly spoke with Chinese President Xi Jinping about the incident, asking for prompt resolution of the matter.

Resolution

On November 14, 2017, about one week after the original incident took place, the three UCLA players were on a plane back to Los Angeles. In its statement announcing the players’ return, the PAC 12 Conference thanked both President Trump and the U.S. State Department for their work in reaching a resolution.

Did President Trump Really Save These Players from Substantial Prison Time?

Given the high-profile nature of this case, many media outlets were quick to either concur or dissent with President Trump’s estimation of the magnitude of his assistance to these players. The Criminal Law of the People’s Republic of China sets the framework for analyzing the length of the potential prison sentence for these players.

Criminal Law of the People’s Republic of China: Which Article Are These Players Culpable Under?

Under Chapter V: The Crime of Encroaching on Property, Articles 263 and 264 describe situations in which property has been wrongfully taken. Article 263 describes situations in which property has been “robb[ed] . . . using force, coercion, or other methods.” Article 264 describes situations in which a person has stolen “relatively large amounts of public or private property.” In determining which of these two Articles best fits the UCLA players’ situation, it is necessary to determine the definition of the term “rob.” If this term is defined as it is traditionally defined in American criminal justice systems – “felonious taking of personal property . . . accomplished  by means of force or fear” – then it is likely that the accused players would be evaluated under Article 264, in which the term “steal” is used. Although the terms “steal” and “rob” are used interchangeably in other parts of the Criminal Law (see Articles 239 & 240), robbed is most likely meant to represent the traditional American definition here because of the qualifying statement that “force, coercion or other methods” be employed to effectuate the taking of property.  This prompts the conclusion that the actions of these players would be culpable under Article 264.

What is the Likely Sentence Under Article 264?

Under Article 264, a person’s punishment for stealing property is divided into three tiers, according to the severity of the offense, namely, the value of property taken. Those stealing relatively large amounts of property will receive sentences of fewer than three years, or criminal surveillance, and can be fined in addition to, or in lieu of, these other punishments. Those caught stealing large amounts of property receive prisons sentences of 3 to 10 years, in addition to fines. Those caught stealing extremely large amounts of property would be sentenced to 10 years or more in prison. Evidently, there are no bright-line rules as to which of these tiers a particular offense might fall into. Despite the fact that Louis Vuitton sunglasses retail for anywhere between $435 and $1990, it is unlikely that theft of such an item would constitute anything more than “large amounts or property,” at the very worst.

Administrative Punishment

Given the high degree of ambiguity in the Chinese Criminal Law pertaining to shoplifting offenses, and the relative unimportance of such an offense to the Chinese government, it is likely that this type of incident, absent Presidential intervention, would be handled through a mechanism known in China as administrative punishment. The value of goods taken determines whether the punishment can be administrative or criminal, according to a statement given by Ira Belkin, a former federal prosecutor and adjunct professor of law at NYU, to USA Today. Administrative punishment generally results in “some combination of up to 15 days in jail, fines and warnings,” according to Michael McCann, Sports Illustrated’s legal analyst.

Conclusion

The lack of clarity in the boundaries of various tiers of punishment in the Chinese system make it difficult to determine exactly how much punishment President Trump should take credit for saving these individuals. While an administrative punishment might have been the most likely recourse for such an offense, the international diplomatic consequences of such a high-profile individual being caught in the fray might have escalated this matter to the criminal punishment system. In that event, though the likely sentence would not have been 10 years, as President Trump initially indicated, his diplomatic actions may have saved these UCLA students close to 3 years of prison time, depending on the ultimate value of the items taken.

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Sources Cited

Criminal Law of the People’s Republic of China (promulgated by the Standing Comm. Nat’l People’s Cong., July 1, 1979, amended March 14, 1997), art. 263-64, 1997.

Louis Vuitton Sunglasses (last visited Nov. 20, 2017).

Marissa Payne, Des Bieler, Matt Bonesteel, & Cindy Boren, LiAngelo Ball, two other UCLA players released on bail after shoplifting arrest in China, Wash. Post, Nov. 8, 2017.

Mark Landler & Michael D. Shear, How Trump Helped Liberate U.C.L.A. ‘Knuckleheads’ From China, N.Y. Times, Nov. 14, 2017.

Matt Bonesteel & Cindy Boren, I should have left them in jail!’: Trump fires back at LaVar Ball for saying he did nothing to help UCLA players in China, Wash. Post, Nov. 19, 2017.

Matt Ellentuck, LiAngelo Ball and 2 other UCLA basketball players arrested in China, explained, SB Nation, Nov. 19, 2017.

Michael McCann, LiAngelo Ball, UCLA Teammates Could Face Chinese Jail Time, Sports Illustrated, Nov. 7, 2017.

Press Release, Pac-12 Conference, Statement from Pac-12 Commissioner Larry Scott on UCLA men’s basketball student-athletes returning home (Nov. 14, 2017) (on file with author).

Robbery, Black’s Law Dictionary (2d ed. 1910).

Suzannah Gonzales & Arshad Mohammed, UCLA basketball players arrested in China could stay for months: ESPN, Reuters, Nov. 8, 2017.

Tom Schad, LiAngelo Ball, other UCLA players unlikely to face severe punishment, Chinese law experts say, USA Today, Nov. 8, 2017.

Photo courtesy of Business Insider.

 

Forgetting the Crime: Death Penalty and Memory

Written by Cynthia Moore

On November 6, 2017, the Supreme Court decided Dunn v. Madison and held that, despite the inability to remember his crime, Vernon Madison was eligible to be executed by the State of Alabama.

Background

More than 30 years ago, Vernon Madison snuck up behind Julius Schulte, a police officer, and shot him twice at close range, killing him. Madison has been awaiting execution since 1985, when a jury convicted him of capital murder. In prison, Madison had a series of strokes, which caused him to suffer from vascular dementia, blindness, slurred speech, incontinence, and an inability to walk on his own. The strokes also caused him to forget the crime he was convicted of.

Procedural History

In 2016, nearing his execution date, Madison petitioned the trial court to suspend his death sentence, arguing that he had become incompetent for execution. The trial court denied his petition, citing two major Supreme Court cases, Ford v. Wainwright and Panetti v. Quarterman. Ford prohibited execution of the insane, and Panetti required prisoners to have a comprehension of the meaning and purpose of the punishment in order to be eligible for execution.

After hearing testimony from two psychologists who examined Madison’s competence, the trial court held that Madison was not entitled to relief because he failed to show that he “suffers from a mental illness which deprives [him] of the mental capacity to rationally understand that he is being executed as a punishment for that crime.” Additionally, the court held that he understood three important facts: (1) he would be executed for the murder he committed; (2) the State sought retribution for this crime; and (3) he would die when executed.

Madison subsequently petitioned the District Court for the Southern District of Alabama for a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996, arguing that his mental condition barred him from execution. This Act entitles state prisoners to relief if they can show that the “state court’s decision was ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement’” —a demanding standard.

The District Court denied his petition, reaffirming the state court’s holding. However, the Eleventh Circuit granted a certificate of appealability and reversed the District Court’s ruling. Alabama appealed and the Supreme Court unanimously reversed the Eleventh’s Circuit’s ruling, holding that Madison could be executed by the State of Alabama because he recognized that he would be executed as punishment for the murder he was convicted for. The Court also held that “[n]either Panetti nor Ford ‘clearly established’ that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case.”

Constitutional Protections

The Eighth Amendment secures the right to be free from cruel and unusual punishment, which courts have interpreted to prohibit states from carrying out the death sentence on individuals who are not able to “rationally understand” why he/she is being punished (a standard applied by the Supreme Court in Panetti v. Quarterman). In Panetti, the Court held that a prisoner must have a rational understanding of the punishment, because without this understanding, it would undermine the purpose of executions. Nonetheless, the Supreme Court refused to set down a broad rule governing all competency determinations.

Concurrences

Justice Ruth Bader Ginsburg, Justice Stephen Breyer, and Justice Sonia Sotomayor all concurred with the majority opinion in Madison, noting that this case stands for a “substantial question not yet addressed by the Court.” They noted that the limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 prevented consideration of whether the death penalty may be imposed on a person who has no memory of the offense.

Justice Breyer wrote a separate concurrence, stating that this case represents the problems with the administration of the death penalty. He argued that rather than focusing on specific circumstances of aging prisoners, it would be better to call into question the constitutionality of the death penalty itself. This is not the first time that Justice Breyer has questioned the constitutionality of the death penalty. He is known for urging reconsideration of the death penalty, opining in 2016 that it is “unreliable, arbitrary and shot through with racism.”

The Death Penalty in the United States

While 16 states do not have the death penalty, as of 2015, there were still 2,881 individuals sentenced to death in 2015. Moreover, there were 26 executions and 82 removals from death sentences by means other than execution in 2015. The Department of Justice has noted, however, that death sentences seem to be on a downward trend, as this is the 15th consecutive year in which the number of inmates sentenced to death decreased.

Aging on Death Row

As of 2013, almost one third of the oldest offenders (age 65 or older) were serving sentences of life imprisonment or were awaiting the death penalty. Aging in prison will likely become a more prominent issue, as the population aged 65-84 in the U.S. will grow from 11.3% in 2010 to an estimated 16.4% in 2050. The percentage of individuals aged 85 and over is estimated to grow from 1.8% in 2010 to 4.5% in 2050.

Alzheimer’s disease, a degenerative brain disease, is common among older adults. It is the most common cause of dementia, which is characterized by decline in memory and other cognitive skills. The projected number of adults age 65 and older with Alzheimer’s disease is estimated to almost triple from 4.7% in 2010 to 13.8% in 2050.

Given these trends, it is likely that this issue will be heard by the Supreme Court again very soon.

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Sources Cited

Dunn v. Madison, No. 17-193, 2017 U.S. LEXIS 6630 (2017).

Panetti v. Quarterman, 551 U.S. 930 (2007).

Ford v. Wainwright, 477 U.S. 399 (1986).

Madison v. Comm’r, Ala. Dep’t of Corr., 851 F.3d 1173 (11th Cir. 2017).

Ex Parte Madison, 718 So. 2d 104 (Ala. 1998).

Alzheimer’s Ass’n, 2016 Alzheimer’s Disease Facts and Figures, 5, 23 (2016).

Ann Carson & William J. Sabol, U.S. Dep’t of Just., Aging of the State Prison Population, 1993–2013, at 1, 5 (May 2016).

Sandra L. Colby & Jennifer M. Ortman, U.S. Dep’t of Com., The Baby Boom Cohort in the United States: 2012 to 2060, at 9 (May 2014).

Tracy Snell, U.S. Dep’t of Just., Capital Punishment, 2014–2015, at 1 (May 2017).

Alisa Johnson, SCOTUS Allows Execution of Prisoner with No Memory of Crime, Bloomberg BNA (Nov. 6, 2017).

Adam Liptak, Once Again, Justice Breyer Presses Case Against Death Penalty, N.Y. Times (Dec. 12, 2016).

Adam Liptak, Justices Allow Execution of Inmate Who Cannot Recall His Crime, N.Y. Times (Nov. 6, 2016).