For Want of a Comma

–by Ian Ludd

Citations: Daniel Victor, Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute, N.Y. Times (Mar. 16, 2017); O’Connor v. Oakhurst Dairy, No. 16-1901, 2017 U.S. App. LEXIS 4392 (1st Cir. Mar. 13, 2017); Maine Legislative Drafting Manual, 1st Ed. 1990, Revised Aug. 2009.

Abstract: The lack of a serial comma (or oxford comma) in a Maine wage and hours law created an ambiguity that compelled the First Circuit to rule in favor of the plaintiff delivery drivers in O’Connor v. Oakhurst Dairy. The Maine Legislative Drafting Manual specifically urges legislators to avoid the use of such commas. However, the ambiguity created by the absence of a serial comma raises questions of whether or not the convenience of their exclusion is worth the cost.


“For want of a comma, we have this case,” wrote Circuit Judge Barron in delivering the First Circuit’s opinion on a labor dispute. On March 13, 2017 the First Circuit ruled in favor of the delivery drivers of Oakhurst Dairy and Dairy Farmers of America, Inc., finding the lack of a serial comma within a state statute determinative in its decision.

The Appellate Court’s analysis in interpreting the scope of an exemption from Maine’s overtime law focused on the lack of a “serial comma,” or “Oxford comma” within the statute. The relevant portion of the statute states:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

The lack of a serial comma between “shipment” and “or” within the text of the statute created sufficient ambiguity that the Circuit Court overturned the District Court’s findings.

The Maine Legislative Drafting Manual specifically advises drafters to avoid using serial commas. As the manual states, do not write “trailers, semitrailers, and pole trailers” – instead, write “trailers, semitrailers and pole trailers.” However, this did little to ease the Circuit Court’s concern regarding the ambiguity inherent with the lack of the comma.

While the delivery drivers “distribute” perishable foods, they do not package perishable foods for shipment or distribution. As Justice Barron stated, “[I]f that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform.” However, under Maine law, any ambiguity within the state wage and hour laws must be liberally construed so as to accomplish their remedial purpose. The remedial purpose of the statute was to reward workers with wages. For this reason, the First Circuit adopted the drivers’ liberal interpretation of the exemption and awarded them overtime pay.

The First Circuit’s reliance on the importance of the comma is far from unique within legal history. From a $1 million dispute between Canadian companies in 2006, to a tariff law from 1872, to varying interpretations of a comma in the Second Amendment, commas have a storied past in legal interpretation and analysis.

The Maine Legislative Drafting Manual is hardly unique in its distaste for the “oxford comma.” The Associated Press and most major American new organizations instruct their writers not to use the additional comma. Exceptions are made only to resolve ambiguity. The comma is however widely embraced within book and academic publishing. The Chicago Manual of Style and the Oxford University Press style both use the serial comma, as it serves to resolve ambiguity.

The adoption or condemnation of the oxford comma within Legislative Drafting Manuals has far reaching implications for future legislation. One wonders why legislatures would resist the use of a comma that so often functions to clarify. Does the convenience of the lack of the comma truly outweigh the clarity that the serial comma provides? While critics of the additional comma may say it is redundant, is the extra effort of a comma truly more burdensome than the potential ambiguity its absence may create? For the Dairy Companies who lost this case, the lack of the comma could prove to cost an estimated $10 million. Perhaps legislatures should value the clarity of a serial comma over the convenience of its exclusion. Whether the Maine legislature will rewrite the statute in a way that resolves this ambiguity remains to be seen.

SCOTUS: No-Impeachment Rule Not Applicable to Jury Deliberations When Racial Bias is Found

–by Melanie-Ann DeLancey

Source: Pena-Rodriguez v. Colorado, 580 U.S. ____ (2017).

Abstract: On March 6, 2017, the U.S. Supreme Court held that racial comments made during jury deliberations can violate a defendant’s constitutional right to a fair trial.


Facts and Procedural History

Miguel Angel Pena-Rodriguez was accused of groping teenage girls while at his workplace. Pena-Rodriguez maintained that it was a case of mistaken identity and that he did not touch the girls. Ultimately, the jury convicted Pena-Rodriguez of one misdemeanor count of unlawful sexual contact and two misdemeanor counts of harassment. The jury was unable to reach a verdict on the felony charge of attempted sexual assault of a child.

It was reported that during deliberations, a juror stated, “I think he did it because he’s Mexican and Mexican men take whatever they want.” The juror went further to say, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” His defense attorney learned of the comments after the verdict. When the defense attorneys requested that the judge investigate whether these comments prevented their client from receiving a fair trial, the judge declined. The Colorado Supreme Court upheld the decision. Both federal and state law precluded challenges to statements made during jury deliberations.

Supreme Court Decision

The Supreme Court reversed and remanded. In a 5-3 decision, Justice Kennedy stated that when a juror makes clear statements that indicate he or she relied on racial stereotypes or animus to convict a defendant, the Sixth Amendment requires the trial court be allowed to consider the evidence of the statement, regardless of the no-impeachment rule. The no-impeachment rule assures “jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations.” Racial bias and animus in jury deliberation taints the legal system and does not ensure equal treatment under the law to all criminal defendants. Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow inquiry. There must be a showing that one or more jurors made statements that exhibit overt racial bias that “cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.”

While the Court recognized that all forms of improper bias poses challenges to the trial process, the Court does not address those in this decision. The Court found that a sound basis existed to treat racial bias differently—to be treated with added precaution. “A constitutional rule that racial bias in the justice system must be addressed—including . . . after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.”

Alito Dissenting

In his dissent, Justice Alito found that the majority’s decision invites the harms that the no-impeachment rule was put in effect to prevent. The finality of verdicts will be undermined, harassment and annoyance by litigants seeking to challenge the verdict will increase, and the overall stability of the trial system will be called into question. Alito further penned that the decision would inhibit full and frank discussion in the jury room.

Supreme Court of the United States Quotes Syracuse Law Review Article

–by Samantha Pallini

Citation: McLane Co. v. EEOC, No. 15-1248, 2017 U.S. LEXIS 2327, at *17 (Apr. 3, 2017) (quoting Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L. Rev. 635, 637 (1971)).


The Supreme Court of the United States decided on April 3, 2017, that the Ninth Circuit Court of Appeals should review the decision of the district court, regarding the enforcement or rejection of an EEOC subpoena, for abuse of discretion.

In the majority opinion, Justice Sotomayor quotes a 1971 Syracuse Law Review article by Maurice Rosenberg, a 1940 graduate of Syracuse University and 1947 law graduate of Columbia Law School.

Maurice Rosenberg. Photo courtesy of Joe Pineiro and Columbia Law School.

Rosenberg’s article, Judicial Discretion of the Trial Court, Viewed From Above, discusses the meanings and uses of judicial discretion, specifically with regard to “primary” and “secondary” forms of discretion. Primary discretion, he explains, is when an adjudicator has a wide range of choices; whereas, secondary discretion has to do with “hierarchical relations among judges.”

“If the word discretion conveys to legal minds any solid core of meaning, one central idea above all others, it is the idea of choice,” Rosenberg writes.

How Courts Are Handling the Proportionality Requirements of Rule 26(g)

–by Steven Yurkonis

Sources: Fed. R. Civ. P. 26 (2015); Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 357 (D. Md. 2008).

Abstract: The changes to discovery procedures in the Federal Rules of Civil Procedure have been in effect for over a year. This article evaluates the impact of the revised Rule 26 proportionality requirement and the mandatory sanctions for failure to comply.


On December 1, 2015, the amendments to the Federal Rules of Civil Procedure went into effect that brought a number of changes to the way that discovery is handled in a federal civil case. One of the changes was to focus discovery and avoid wasteful spending.

Rule 26(b)(1) outlines the scope, or what is included, in discoverable information. The biggest change that came with the amendment was the inclusion of the proportionality requirement. The rule now states that the discovery must be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

This proportionality requirement is not new to the discovery rules, as the movement of the proportionality requirement to 26(b) reinforces the Rule 26(g) requirement that attorneys consider the above factors prior to making discovery requests and objections. This has had the effect of either not changing much of anything, or changing everything in the way the courts have handled discovery disputes. The rule now requires that sanctions must be used if discovery is done for improper purposes.

This requirement of mandatory sanctions is a form of judicial supervision over carelessness and intentional gaming in discovery. In one of the seminal cases on this rule, Mancia v. Mayflower Textile, United States District Court Judge Grimm discussed how discovery abuses led to the changes in Rule 26 and the mandatory sanctions. He discussed how “kneejerk” requests and responses for discovery that are overbroad is a common practice and must be put to an end. Simply bringing it to the forefront of litigants’ minds may be enough to stop these types of requests.

Even worse than reactional and not-thought-out requests are intentional gaming of discovery, such as the classic “document dump” in discovery intended to bury opposing litigants in work. These types of actions now require sanctions by the judge, although the judge has discretion to impose the level of sanctions he or she considers necessary.

Ultimately we haven’t seen how the amendments are going to change discovery overall because there hasn’t been enough time for it to play out in the courts, but within the next year or two we should have more of an idea of how judges and litigants are going to respond to the proportionality requirement and the mandatory sanctions.

New York’s 2nd Circuit Court of Appeals Cites Syracuse Law Review Article

–by Adam Kuhn

Citation: Jessica Dye, GM Not Protected From Ignition Switch Claims, Reuters (July 13, 2016, 10:31 PM),; In re Motors Liquidation Co., 829 F.3d 135 (2d Cir. 2016); A. Joseph Warburton, Understanding the Bankruptcies of Chrysler and General Motors: A Primer, 60 Syracuse L. Rev. 531 (2010).

The U.S. Second Circuit Court of Appeals is allowing plaintiffs to sue General Motors for an ignition-switch defect. In its decision, the Second Circuit cited a 2010 Syracuse Law Review article by Syracuse University College of Law Professor A. Joseph Warburton.

Warburton’s article, Understanding the Bankruptcies of Chrysler and General Motors: A Primer, discussed how the bankruptcies of Chrysler and General Motors could impact future bankruptcies.

“The reorganizations of Chrysler and General Motors in 2009 were complicated bankruptcies,” Warburton said.  “Although they attracted much attention, the bankruptcies were not well understood.”

Professor Warburton

The Law Review was also cited last year by the New York Court of Appeals.

U.S. Supreme Court Vacates Transgender Rights Case

–by Joseph Railey

Citations: Gloucester Cty. Sch. Bd. v. G.G., 2017 WL 855755 (U.S. 2017); Chevron USA v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); Auer v. Robbins, 519 U.S. 452 (1997); G.G. v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016); U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter on Transgender Students (May 13, 2016),; Gavin Grimm, Gavin Grimm: The Fight for Transgender Rights is Bigger than Me, N.Y. Times (March 7, 2017),


Abstract: A transgender male in Virginia sued his high school for denying him access to the facilities that correspond to his gender identity. The Fourth Circuit ruled that the transgender student should be granted access to the men’s restroom. On March 6, 2017, the U.S. Supreme Court vacated and remanded the case.


On March 6, 2017, the Supreme Court vacated and remanded Gloucester County School Board. v. G.G. to the Fourth Circuit. Gloucester County deals with the rights of transgender students in public schools to use the restroom facilities that correspond to their gender identity.

In May 2016, The Departments of Education and Justice issued a joint memorandum to all public schools. That memo directed schools to treat a student’s gender identity (the way the student sees and identifies him or herself) as the student’s sex for Title IX purpose. Thus, under the guidance, a school must allow a transgender male to use a men’s restroom and a transgender female to use a women’s restroom.

Based on this guidance, Gavin Grimm, a transgender male high school student in Gloucester County, Virginia who was born female but identifies as male, was allowed to use the men’s restroom in his high school. Subsequently, a number of parents in the community successfully petitioned the school board to require Grimm to use unisex bathrooms. Grimm sued his school alleging that the school board’s decision violated both Title IX and his constitutional right to equal protection. The District Court dismissed Grimm’s complaint.

On appeal, the Fourth Circuit reversed the District Court and vacated the denial of a preliminary injunction (to allow Grimm access to the men’s restroom while the suit proceeded). In reaching this conclusion, the Fourth Circuit relied on: (1) a jointly issued May 2016 Department of Education and Department of Justice memo; (2) U.S. Supreme Court precedent in Chevron U.S.A. v. Natural Resources Defense Council, Inc. and Auer v. Robbins; and (3) the ambiguity in Title IX as to the meaning of “sex.”

The 2016 memo unequivocally stated that for purposes of Title IX a student’s gender identity was treated as their sex. The court felt this interpretation was reasonable, and determined that deference should be given to the memo in deciding the case. Based on that deference, the court held that it was impermissible to deny Grimm access to the men’s restroom because of his status as a transgender male.

The court also determined that Chevron and Auer controlled. Chevron provides that courts should defer to administrative agencies such as the Department of Justice and Department of Education. “Auer requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute.”

As the memo provided an interpretation from an agency tasked with enforcing an ambiguous Title IX statute, the Court held that because Grimm identified as a male, he had a right to use the men’s restroom.

In October 2016, the U.S. Supreme Court granted certiorari in Grimm’s case and scheduled it for arguments at the end of March 2017. Upon taking office, President Trump, U.S. Attorney General Jeff Sessions, and U.S. Secretary of Education Betsy DeVos issued a guidance document that rescinded the 2016 memo on transgender students. The Court then rescinded certiorari stating, “[t]he judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.”  As such, the case has now been sent back to the Fourth Circuit for further action.

U.S. Supreme Court Limits Police Officer Liability

–by Kim Newton

Sources: White v. Pauly, 137 S. Ct. 548 (2017); U.S. Const. amend. IV

Abstract: On January 9, 2017 the Supreme Court unanimously held that an officer’s failure to shout a warning before firing a gunshot in an ongoing confrontation does not constitute a violation of the Fourth Amendment right to be free from the excessive use of force.


“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”

–U.S. Const. Amend. IV

Facts and Procedural History

On a rainy evening near Santa Fe, New Mexico, two women observed a reckless, swerving vehicle driven by Daniel Pauly and called 911. Officers Truesdale and Mariscal responded to the incident first and determined there was insufficient probable cause to arrest Daniel, who had already left the scene. Therefore, the two officers proceeded to the address registered to the license plate, belonging to Daniel and Samuel Pauly. They hoped to “(1) get his [Daniel’s] side of the story, (2) make sure nothing else happened, and (3) find out if he was intoxicated.”

When police arrived, they saw people moving inside the house and found Daniel Pauly’s matching truck parked outside. The brothers heard the officers outside and yelled, “Who are you?” and “What do you want?” The officers responded, “Hey, (expletive), we got you surrounded. Come out or we’re coming in,” followed by “open the door, State Police, open the door.” The Pauly brothers claimed the police never identified themselves and the brothers armed themselves with a handgun and a shotgun.

During the verbal confrontation, Officer White arrived at the scene. He began walking toward the front door when he heard one brother yell, “we have guns.” Officer White then drew his gun and took cover behind a stone wall nearby. Shortly after, Samuel opened the front window and pointed his gun in Officer White’s direction. After Officer Mariscal missed a shot, Officer White shot and killed Samuel.

Samuel Pauly’s estate and the surviving Daniel Pauly sued the officers, arguing the fatal shot violated the Fourth Amendment right to be free from excessive use of force. The officers argued they were entitled to qualified immunity because a reasonable person would have known there was no constitutional violation.

The District Court denied the officers’ motion for summary judgment, and the U.S. Court of Appeals for the Tenth Circuit affirmed, reasoning that reasonable officers should have known that their conduct would cause the Pauly brothers to defend their home in a manner that could result in the use of deadly force. Furthermore, Officer White arrived to the scene later and only heard “we have guns.” Therefore, the court reasoned that the fatal shot was unreasonable because any reasonable officer would have known a warning was required.

Supreme Court Decision

The Supreme Court vacated the judgment and remanded for further proceedings, holding

“[f]or purposes of qualified immunity, clearly established law should not be defined at a high level of generality. As explained decades ago, the clearly established law must be particularized to the facts of the case. Otherwise, plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.”

The Court reasoned that an officer who arrives late to an ongoing police action could reasonably assume that the proper procedures, such as officer identifications and warnings, had already been followed. For Officer White, the Fourth Amendment did not require him to second-guess the earlier steps of his colleagues. Therefore, there was no violation.

Justice Ginsburg’s Concurrence

Justice Ginsburg wrote a separate concurrence to highlight remaining questions of fact. Namely, whether Officers Truesdale and Mariscal “adequately identified themselves” as police officers; when Officer White arrived at the scene; what he may have witnessed; and whether he had adequate time to identify himself and order Samuel Pauly to drop his weapon before the fatal shot. She cautioned that a different outcome might be required based on evidence suggesting that Officer White was on the scene during the first threats to invade the home.

A Potential Solution to a “Claw-ful” Problem: A Bill to Prohibit Declawing

–by Grace Hwang


Joel Rose, A Declaw Law? Veterinarians Divided Over N.J. Cat Claw Bill, NPR (Feb. 16, 2017, 4:31 PM),

To declaw cats or not? New Jersey could be first with ban, Fox News (Feb. 9, 2017),

Susan K. Livio, Paws off N.J. cat claws: Assembly panel approves declaw ban, (Nov. 15, 2016, 7:10 AM),



New Jersey lawmakers are considering a bill that would make it a crime to declaw cats. If passed, New Jersey will be the first state to implement such a ban.


The “Cat Claw Bill” (Bill No. 3899) is sponsored by Assemblyman Troy Singleton (D-Burlington). The bill prohibits veterinarians from performing onychectomy (declawing) or flexor tendonectomy (preventing a cat from flexing or extending its claws) on cats or other animals unless the procedure is medically necessary.

Assemblyman Singleton argues, “Declawing is a barbaric practice that more often than not is done for the sake of convenience rather than necessity.” But not everyone agrees that such practices are harmful to cats in the long run.

Assemblyman Parker Space (R-Sussex) voted against the bill based on his own experiences with his family cat. He commented that his cat inflicted $600 worth of damage to his home. For him, “it was either getting declawed or going back to the shelter,” where it would likely be euthanized.

Veterinarians are also sharply divided on the issue. Gordon Stull, a veterinarian for over 40 years, explained that he felt uncomfortable performing declawing procedures because “[i]t just seemed like this is not a procedure I should be doing. Because it’s not helping the animal. It’s a convenient surgery for the client. And it’s a mutilation.”

But other veterinarian’s disagree. Jose Pla, a veterinarian at several animal hospitals in northern New Jersey, says “I think that it is a surgery that has its place to help certain cats be able to enjoy a loving relationship with their owners.” He agrees that the surgery is an amputation but because of modern technology, the cats are able to recover quickly without much pain.  Others warn that more cats may be abandoned and then euthanized as a result of the ban.

So is declawing really worth banning?

Declawing involves either an onychectomy or a flexor tendonectomy. “An onychectomy involves amputating the last bone of each toe. A flexor tendonectomy involves severing the tendon that controls the claw in each toe, so that the cat keeps its claws but cannot flex or extend them.” In addition to banning these practices, anyone in violation would be guilty of a disorderly persons offense that can mean a fine up to $1,000, a term of imprisonment of up to six months, or both. Those in violation may also be subject to a civil penalty of an amount between $500 and $2,000.

Despite the immediate benefits this may have on cats, the American Veterinary Medical Association, an association that represents more than 89,000 veterinarians, does not support this bill. They do not agree that onychectomies are barbaric. Although it is done in most cases where it is not medically necessary and has medical complications that go along with it, the association believes that it is still a viable option when other attempts to modify behavior have failed. Although the association discourages declawing, they do not believe that lawmakers should tell doctors what to do.

Included in the debate are avid cat lovers and owners. Laura Goode, a volunteer at Only Hope Cat Rescue who has cared for countless numbers of cats explains that cats who are declawed often exhibit aggressive behavior and have difficulty using the litter box.

The bill presents risks on both sides of the debate. Passing the bill would roll back on the autonomy given to veterinarians and pet owners. It would also risk more cats being relinquished because of inconvenience and property damage. But not passing this bill may mean the continual amputation of cats for the sake of human convenience.

Although this measure was cleared by the state assembly, it will still have to “claw” its way through the state senate before it lands on the Governor’s desk.

After Hours of Debate Between Members of the House Judiciary Committee, the Lawsuit Abuse Reduction Act of 2017 (H.R. 720) Advances to the House Floor

–by Anna Pinchuk


Abstract: H.R. 720, the Lawsuit Abuse Reduction Act, amends Rule 11 of the Federal Rules of Civil Procedure. The Act requires judges to impose mandatory sanctions on attorneys who file frivolous claims and eliminates the 21-day “safe harbor” provision. After approval by the House Judiciary Committee, it advanced to Congress.


On January 30, 2017, H.R. 720, the Lawsuit Abuse Reduction Act of 2017 (LARA), sponsored by Rep. Lamar Smith (R-TX), was introduced in Congress and referred to the House Judiciary Committee. LARA amends Rule 11 of the Federal Rules of Civil Procedure. First, it requires judges to impose mandatory, instead of discretionary, sanctions on attorneys who file frivolous claims, defenses, or other legal contentions. Second, the Act strikes down the provision of Rule 11 that allows attorneys to avoid sanctions by withdrawing claims or defenses within 21 days.

Currently, Rule 11 allows judges to use their discretion in imposing sanctions. For example, a judge may impose sanctions on attorneys if they file claims for an improper purpose or their claims are not warranted by the existing law or an extension of the law. The Rule also contains a 21-day “safe harbor” provision which allows attorneys to withdraw their claims without the imposition of sanctions.

On February 2, 2017, the House Judiciary Committee approved LARA on a 17-6 vote. During the markup, Chairman of the Judiciary Committee Bob Goodlatte (R-VA) expressed support for the Act because it “would finally provide light at the end of the tunnel for the victims of frivolous lawsuits.” According to Congressman Goodlatte, current lack of mandatory sanctions leads to regular filings of baseless lawsuits and forces victims to settle cases in order to avoid litigating in court. The U.S. Chamber Institute for Legal Reform applauded the Judiciary Committee for the Act, saying, “These bills will discourage plaintiffs’ lawyers from gaming America’s justice system to their advantage.”

Representative John Conyers, Jr. (D-MI), the ranking member of the Judiciary Committee, expressed strong opposition to LARA because “it will chill the advancement of civil rights claims and increase exponentially the volume and cost of litigation in the Federal courts.” According to Representative Conyers, the version of mandatory sanctions of Rule 11 that LARA restores had already failed when it was in effect from 1983 to 1993. Representative Conyers highlighted that civil rights cases often involve novel legal arguments which may be especially susceptible to new sanctions. For example, in 1983, Rule 11 motions were higher in civil rights cases than in any other type of cases. Additionally, Representative Conyers was concerned that by eliminating the “safe harbor” provision, the modified version of the Rule will increase the amount, costs, and intensity of civil litigation, creating more ground for unnecessary delay and harassment. As a result, Representative Conyers proposed an amendment that would exclude cases brought under the Constitution or under any civil rights laws from the application of the Rule. However, the majority of the House Judiciary Committee rejected this amendment, along with other amendments from democratic representatives.

The American Bar Association (ABA) also expressed opposition to LARA. The ABA opposed LARA because Congress had already established procedures for amending the Federal Rules of Civil Procedure that are not being followed by proponents of LARA. Additionally, there is no evidence to support the contention that current Rule 11 sanctions are inadequate. The ABA is concerned that modifying Rule 11 will encourage additional litigation and increase court delays and costs.

Since 1995, bills like LARA that would toughen Rule 11 sanctions have been regularly introduced in both the House and Senate. To this day none have been successfully enacted. Last September, similar legislation passed the House on a 241-185 vote, but was not passed in the Senate. Similarly, this year, the Republican Party’s control of the House will make LARA’s passage more likely in the House. However, its passage in the Senate is not as certain.

New York Court of Appeals Holds That Skin Color Is a Cognizable Class Under Batson Analysis

–by Robert Carpenter

Citation: People v. Bridgeforth, 2016 N.Y. Lexis 3859 (Dec. 22, 2016) (internal citations omitted).

Abstract: In a matter of first impression, the New York Court of Appeals held that skin color was a cognizable class for Batson based challenges to peremptory strikes.


On December 22, 2016, the New York Court of Appeals held that a trial court had committed reversible error by not seating a juror. In so doing, the Court established skin color as a classification upon which a challenge to peremptory strikes could be successfully based.

The defendant in the case was charged with multiple counts of robbery. During voir dire, the prosecutor used peremptory challenges to exclude multiple potential jurors. Defense counsel alleged that the prosecutor lacked valid reasons for the strikes, other than the fact that all those excluded were “dark-skinned women.” The record indicates that the excluded group included African-American women, Guyanese women, and “a dark complexioned Indian-American woman.” The prosecutor immediately supplied reasons for the challenges for all those excluded except for the Indian-American woman. Even with no reason for the challenge, the Indian-American woman was not seated as a juror.

The Court began by reviewing how New York analyzes challenges to peremptory strikes. The Court noted that New York has adopted the framework used by the Supreme Court case Batson v. Kentucky, 476 U.S. 79 (1986). The Batson framework requires the movant to establish a prima facie case of peremptory strikes being used to discriminate. After that the non-moving party must put forth a non-discriminatory reason for the strike. Finally, the Court decides whether the stated reason was legitimate or a pretext for discrimination.

The Court then considered whether skin color implicated equal protection concerns. For guidance, the Court looked to the New York Constitution’s equal protection clause, which prevents discrimination against “race, color, creed or religion.” The Court concluded that the distinction between “race” and “color” meant that the two concepts were unique. The Court also cited several academic articles that had found the existence of “colorism.” With all of these factors in mind, the Court found that Batson should be extended to include challenges based on skin color.

After finding skin color to be a cognizable classification for Batson, the Court noted that this decision did not conflict with past decisions that found Batson challenges could not be based on the exclusion of minorities. The Court stated that skin color required only a narrow showing while minority status could include a varied group of people.

In applying the new Batson classification to the case, the Court first held that the trial court did not reach an ultimate conclusion on the prima facie case of discrimination necessary under Batson analysis. This meant that the issue was not moot and reviewable on appeal. The Court then concluded that the defendant had successfully established a prima facie case of discrimination based on skin color.

The Court then considered whether the prosecutor had put forth a non-discriminatory reason for the strike. The Court cited several cases showing that failing to recall a non-discriminatory reason is insufficient under the second stage of Batson analysis. After finding that the defendant had succeeded in establishing a prima facie case of discrimination and that the prosecutor had failed to put forth a non-discriminatory reason, the Court held that the trial court committed reversible error by not seating the juror.

One Judge concurred that the trial court committed reversible error by not seating the juror but believed the court erred in establishing a new Batson classification.

The concurring judge argued that the majority had misapplied New York mootness doctrine. Where the majority concluded that the issue of Batson analysis was not moot because the trial judge never made a final ruling on the classification, the concurring judge disagreed. The judge noted that the prosecutor articulated non-discriminatory reasons for four of the five excluded persons before the trial judge made a ruling on the prima facie case of discrimination. The judge concluded that the immediate response by the prosecutor mooted the issue. The judge would have held that it was error to exclude the one juror for which no reason was articulated but would not have addressed the Batson argument.

The concurring judge also criticized the majority’s conclusion that the judge did not make an ultimate decision. The judge argued that by not seating the juror, the judge made an ultimate decision even if it was not stated on the record.