Chicago Jury Convicted Jason Van Dyke of Second-Degree Murder: Could it be Overturned on Improper Venue Grounds?

written by Amy N. Walendziak


On October 5, 2018, a Chicago jury convicted former police officer Jason Van Dyke of second-degree murder for the fatal shooting of Laquan McDonald in 2014. However, the legal battle surrounding McDonald’s death is far from over, as Van Dyke’s lawyers intend to appeal his conviction. The issue of venue is likely to be appealed in this case.


On October 20, 2014, police officers received a report that someone with a knife was breaking into cars in a parking lot near South Pulaski Road and 41st Street in Chicago, Illinois. Officers pursued 17-year-old Laquan McDonald, who was seen in the location. McDonald allegedly refused to stop when officers ordered him to do so. Officer Van Dyke arrived on the scene, and, within six seconds of his arrival, repeatedly shot McDonald, continuing to shoot after he fell to the ground. Autopsy reports revealed that McDonald was shot sixteen times.

On November 24, 2015, just over a year after the shooting, Van Dyke was charged with first degree murder for killing McDonald in Cook County. On August 3, 2018, Van Dyke’s defense attorney moved for the trial to be held outside of Cook County, arguing that Van Dyke would be unlikely to receive a fair trial because of intense publicity that had surrounded the case. He presented the results of a study by a defense expert indicating that a majority of those polled believed Van Dyke was guilty. The judge delayed ruling on the motion until after jury selection.

The trial took place over four weeks, with jury selection beginning on September 10, 2018. Over the course of two and a half days, 54 potential jurors were questioned. Testimony began on September 17. The prosecution presented its case over four days, and the defense presented its case over five days. Closing arguments took place on October 4, and the jury deliberated from October 4 to October 5. On October 5, the jury returned a verdict, finding Van Dyke guilty of second-degree murder and sixteen counts of aggravated battery with a firearm, and not guilty of official misconduct.

Van Dyke is scheduled to return to court on October 31 for a hearing, during which his attorneys will file post-trial motions and the date for his sentencing will be set. His attorneys have indicated that they intend to appeal his convictions. Given the pre-trial discussions of venue, it is likely that Van Dyke’s attorneys will appeal the judge’s ruling on venue.

Venue for Criminal Trials

In Illinois, criminal prosecutions take place in the county where the crime was committed. A defendant may move to change the venue if “there exists in the county in which the charge is pending such prejudice against him on the part of the inhabitants that he cannot receive a fair trial in such county.” On appeal, a court’s decision to deny a motion for a change of venue will be upheld unless there is an abuse of discretion. When making this determination, appellate courts determine whether the defendant received a “fair and impartial trial” despite any potential for prejudice.

Illinois appellate courts consider many factors when determining whether a defendant faced undue prejudice in a particular county. These factors include the pretrial publicity, specifically the amount of publicity surrounding the case, the time that passed between pre-trial publicity and the start of trial, and the inflammatory nature of any publicity. Given the nature of today’s media, it is difficult to find jurors that have never heard of high-profile cases. It is important to consider other factors in addition to publicity when determining if the defendant received a fair trial.

Appellate courts will also review the selected jurors and the nature of the jury selection. A conviction is unlikely to be reversed based on venue if the jurors unequivocally indicated that they would remain unbiased despite any prior knowledge of the case. Illinois courts have also considered whether the defendant used all of his peremptory challenges. In a similar case involving a murder charge, the court upheld a conviction because the defendant did not exhaust his peremptory challenges.

Venue in this Case

Van Dyke’s lawyers argued that it was impossible for Van Dyke to receive a fair trial in Cook County. After the release of the officer camera video, the trial received a great deal of publicity both within the city, and throughout the country. Further, a defense expert polled potential jurors and found that 74% percent of people polled believe that Van Dyke was guilty.

Prosecutors for the state argued the defense’s study was skewed and offered its own study, indicating that 3.4 million people in the county could serve as unbiased jurors. Additionally, Van Dyke’s attorneys only used five of their peremptory challenges during jury selection, so there were no jurors selected after exhausting peremptory challenges.

The appellate court will have to perform a careful balancing test when determining whether Van Dyke received a fair trial. Given that the defense did not use all of its peremptory challenges, and that jurors indicated that they would remain impartial and listen to the trial evidence, the state will have a strong argument on appeal. However, the defense will likely argue that the type of publicity surrounding this trial is much more prejudicial than past publicity. Several Illinois cases upheld murder convictions in rural towns after local newspapers and media stations covered the trials. Van Dyke’s attorneys will likely distinguish the scope and nature of this case’s publicity from those earlier cases.


While it will likely be some time before an appellate court rules on Van Dyke’s appeal, the issue of venue will be a determining factor in whether Van Dyke’s conviction is upheld.


Andy Grimm, Here are the critical legal questions looming now for Officer Jason Van Dyke, Chi. Sun Times (October 5, 2018).

Judge Delays Ruling on Location of Laquan McDonald Murder Trial, CBS Chi. (August 3, 2018).

Laquan McDonald: A Timline of the Shooting, Fallout, And Officer Van Dyke’s Trial, CBS Chi., (September 4, 2018).

Mitch Smith, We Just Didn’t Buy It’: Jury Was Unswayed by Officer’s Story in Laquan McDonald Case, N.Y Times (October 6, 2018).

Mitch Smith, Timothy Williams, & Monica Davey, Jason Van Dyke Killed Laquan McDonald in 2014. Now Chicago Awaits a Verdict, N.Y. Times (October 4, 2018).

People v. Friday, 598 N.E.2d 302 (1992).

People v. Grover, 417 N.E.2d 1093 (1981).

What You Need to Know About the Jason Van Dyke Trial, NBC Chi. (October 4, 2018).

720 Ill. Comp. Stat. Ann. 5 / 1-6 (West 2013).

725 Ill. Comp. Stat. Ann. 5 / 114-6 (West 1982).

Sixth Circuit Court of Appeals Determines Clean Water Act Exempts Nonpoint-Source Pollutants

Written by Jenilyn M. Brhel


On September 24, 2018, the United States Court of Appeals for the Sixth Circuit reversed a District Court order that required the Tennessee Valley Authority to remove deposits of coal ash from one of its power plants, finding that the Clean Water Act does not apply to pollutants that reach protected waters via “hydrologically connected” groundwater channels.


In 1972, Congress passed the Clean Water Act, establishing protocols for the regulation of water-based pollutants in order to “restore and maintain. . . the Nation’s waters.”

Tennessee Valley Authority (“TVA”) is an electricity provider for approximately 565,000 households in the Nashville, Tennessee region. The company runs several coal-fired plants, one of which is located along a part of the Cumberland River called Old Hickory Lake, a reservoir and recreational destination for millions of people each year.

At its plants, TVA produces waste byproducts known as coal combustion residuals (“CCRs”). CCRs contain carcinogens such as arsenic. The CCRs are treated through a process known as “sluicing”, in which water is mixed with coal ash and allowed to settle in on-site ponds.

TVA treats its CCRs at a series of unlined ponds known as the Complex. The Complex is located on a karst terrain adjacent to the Cumberland River under which sinkholes, fissures and caves create conduits through which groundwater easily flows. These nooks and crannies allow CCRs from the Complex’s unlined ponds to leak into groundwater that flows through the karst terrain and into the Cumberland River.

Pursuant to effluent limitations and other protocols established by the CWA, the Environmental Protection Agency issued a permit to TVA that allows the company to discharge not all, but some of its “sluiced” coal combustion wastewater directly into the Cumberland River via a pipe called Outfall 001.


The plaintiffs, two conservation groups from Tennessee who enjoy Old Hickory Lake as a recreational destination, filed suit on April 14, 2015. They did not contend with TVA’s permitted CCR direct discharge through Outfall 001, but rather argued that the company was in violation of the CWA because of CCR leaks entering Old Hickory Lake via “hydrologically connected” groundwater channels originating from the Complex’s coal ash ponds.

The court rested its decision on its interpretation of the CWA’s distinction between point-source and nonpoint-source pollutants. The precise statutory language in question defined the discharge of a pollutant as “any addition of any pollutant to navigable waters from any point source.”

The plaintiffs argued that the meaning of the statute encompassed pollutants entering the waterway through “hydrogically connected” channels, arguing that because the pollutants entered the river through leaks in the lined ponds, the ponds should be considered a point source.

TVA argued that the meaning of point-source was limited to direct discharges, like those of Outfall 00, and that the statute did not mean to include the migration of pollutants through groundwater.

Ruling: Pollutants Must Have a Point-Source

The District Court for the Middle District of Tennessee found for the plaintiffs and ordered TVA to excavate the coal ash in the Complex and remove it to a lined facility.

The Court of Appeals for the Sixth Circuit reversed the District Court’s decision, finding that a pollutant must be placed directly into a protected water through a specific and identifiable point source. The court focused on the language of the statute regarding “discernible, confined and concrete conveyance(s).” It found that groundwater does not constitute a nonpoint-source conveyance and that karst-related leaks did not violate the provisions of TVA’s permit. The Court further stated that any regulation of pollutants through nonpoint-source conveyances does not come under the purview of the CWA.

Dissent Finds Distinction Arbitrary

The dissent argued that the law could be easily circumvented as defined by the majority. The contention is that if the statute of the language meant that pollutants must come from a direct point source, then companies could circumvent the law simply by arbitrarily moving their drainage pipes a few feet away from the water so that they are not feeding “directly” into it.

Looking Ahead

While the Court ultimately recognized that the pollution presented a significant environmental issue, it opined that the Clean Water Act was not the proper tool to address the problem.

However, both the Fourth District and the Ninth District have ruled to the contrary in recent decisions, finding that an intermediary like groundwater does not necessarily defeat liability. These differences in opinion raise the question of whether a case like this might soon end up at the Supreme Court of the United States.


33 USCS § 1251.

Arsenic, Nat’l Inst. of Envtl. Health Scis. (last visited Sep. 30, 2018).

Coal Ash Basics, U.S. Envtl. Prot. Agency (last visited Sep. 30, 2018).

History of the Clean Water Act, U.S. Envtl. Prot. Agency  (last visited Sep. 30, 2018).

Kenneth Hall, Federal Appeals Court Overturns Tennessee Coal Ash Cleanup Order, JURIST,  (last visited Sep. 30, 2018).

Old Hickory Lake, US Army Corps of Eng’rs,  (last visited Sep. 30, 2018).

Tenn. Clean Water Network v. TVA, No. 17-6155, 2018 U.S. App. LEXIS 27237 (6th Cir. Sep. 24, 2018).

Photo courtesy of Southern Environmental Law Center.

The Power of the First Amendment: District Judge Declares California’s Restrictions on Gun Advertisements Unconstitutional

Written by Collin M. Carr


The California Penal Code states that “[n]o handgun or imitation handgun, or placard advertising the sale or transfer” of handguns “shall be displayed in any part of the premises where it can readily be seen from the outside.” On September 11, 2018, a federal district judge for the Eastern District of California found this statute constitutionally problematic under the First Amendment and prohibited California from enforcing it in a decision that underscores how the law prioritizes freedom of expression over other policy-based concerns.


Between 2010 and 2015, the California Department of Justice issued citations to various gun shop owners for violating § 26820 of the California Penal Code by displaying images depicting firearms on the exterior of their businesses. Aside from issuing citations, the state officials also instructed the owners to remove the prohibited content. These materials included a metal sign outlined as a revolver, a logo shaped as a pistol, and vinyl window decals depicting rifles. While the nature of the materials differed, they all shared one common, prohibited feature: they communicated to the public that the store sold firearms.

The First Amendment Battle

Arguing that the state law infringed on their freedom of speech under the First Amendment, the gun shop owners filed a lawsuit in federal court seeking a court order prohibiting the state from enforcing the law. To determine whether the law in fact infringed on the owners’ First Amendment rights, Judge Troy Nunley conducted the four-part test used to evaluate restrictions on commercial speech.

This test first required the court to determine whether the images involved misleading speech, or speech advertising some form of “unlawful activity.” The court easily found that the images did not constitute a problematic form of commercial speech because the licensed selling and purchasing of firearms constitutes lawful activity, and the images did not create any misleading impression about the business conducted by the gun shops. Second, the court ascertained whether the government possessed a “substantial” interest in regulating the commercial speech. Again, the court easily found that the government imposed the law to serve the weighty interests of reducing gun-related crime and suicide.

The third prong, however, created the biggest area of disagreement and is where the court focused most of its attention. This prong requires the regulation to “directly” or “materially” further the government’s substantial interest. California reasoned that individuals who commit crime and suicide are more likely to possess “impulsive personality traits.” As such, the large images of firearms target people with impulsive personality traits by inducing them into purchasing weapons. The regulation, California asserted, therefore furthered its substantial interest in reducing crime and suicide rates by preventing such individuals from seeing these images and acting on such impulses.

This argument failed to persuade the court. It pointed to the argument’s false assumption that people who are at risk of impulsively purchasing items are also at risk of impulsively committing suicide or crime. The court held that, absent evidence establishing a direct link between the two forms of impulsive behavior, the regulation failed to materially further the government’s interests.

Although the regulation failed to satisfy the third prong of the test, the court proceeded to conduct the legal analysis for the final element, which requires the regulation to impose the least intrusive restrictions “necessary to serve” the government’s interests. The court held that § 26820 failed here as well, since California possesses various other regulations and methods for reducing crime and suicide without infringing on commercial speech. Given these considerations, the court held that § 26820 violated the First Amendment and granted the gun owners the injunctive relief they sought.

The Unwavering Influence of the First Amendment

While the precise boundaries of the First Amendment’s free speech protections remain unclear and are always subject to change, this case makes clear that the principles underlying the amendment remain a potent force against legislation that interferes with the free exercise of speech. Judge Nunley’s characterization of the regulation as a “highly paternalistic” piece of legislation is a testament to the power the First Amendment wields across legal and political ideologies, even in an era where the broad scope of the freedom of expression is increasingly questioned.


Bob Egelko, Federal Judge Nominee Troy Nunley Works His Way Up, SFGate (Jan. 2, 2013).

Cal. Penal Code § 26820 (Deering 2018).

Christopher Hsu, Federal Judge Rule Against Gun Ad Law, Jurist (Sept. 13, 2018).

Tracy Rifle & Pistol LLC v. Harris, 2018 U.S. Dist. LEXIS 154926 (E.D. Cal. Sept. 11, 2018).

Veronica Stracqualursi, Obama Calls for ‘Common Sense Gun Safety Laws’ after Florida Shooting, CNN (Feb. 15, 2018).

Photo courtesy of KPCC.


The Law Responds: How North Carolina Law Protects Consumers After Hurricane Florence

Written by Tyler Sankes


As Hurricane Florence continues its path along the eastern United States, a temporary law is in effect in North Carolina that aims to clean up the hurricane’s destruction. Although the statute cannot remove debris or fix powerlines, it has succeeded in affording hundreds of consumers an avenue to voice their concerns in a time of need.

The law, North Carolina General Statutes Chapter 75 Article 38, prohibits producers of goods and services to charge unreasonably excessive prices and requires violators to refund the consumer and pay up to $5,000 per violation. But before your inner curiosity questions the generality of the statute and/or its market interventionist nature, there are constraints and language that act as guideposts to insure the law is used as intended.


The statue can only be in effect for 45 days from the triggering event and cannot continue beyond the threshold unless renewed by the Governor. In North Carolina, the triggering event was not Florence’s landfall, but rather occurred when the state declared a State of Emergency on September 7th, 2018. Therefore, the law is currently projected to be in place until at least October 22, 2018.

Triggering Event

An event must take place that causes the statute to come into effect. In addition, the event is only ‘triggering’ when North Carolina declares a State of Emergency or when it causes a significant market disruption. Market disruptions, whether actual or imminent, are considered significant when goods or services that are needed by consumers as a direct result of an emergency or are used to protect one’s self or property. Some examples include natural disasters, strikes, civil disorders, war, and terrorist attacks.


The characteristic and price of the good or service, by itself, cannot show that the price gouging law was violated; consumers are required to show intent. Not only must the goods be consumed as a direct result of the emergency, but the producer must possess knowledge and intent to charge unreasonably excessive prices.


To help determine if a producer is charging excessive prices, the law provides several characteristics that should be considered. Increases in supply cost, price compared to previous sales or local competition, greater macroeconomic forces (such as inflation or interest rates), and increased business risks are factors that may be analyzed to help determine whether a price is excessive.

Results So Far

Over 500 complaints have been received by Attorney General Josh Stein’s office. Although these are only complaints and have not been proven in a court of law, the resounding response by North Carolina citizens show that there is a need and the law is responding.



Christina Maxouris, There have been more than 500 reports of price gouging in North Carolina after Florence, CNN (Sep. 17, 2018).

N.C. Gen. Stat. § 75-38

Photo courtesy of AP Photo.

Understanding Securities Laws: Why Elon Musk Might Be in Hot Water after Tweeting About Taking Tesla Private

Written By Nolan Kokkoris



On September 6, 2018, prominent short-seller Andrew Left filed a class action complaint against Tesla, Inc. and its Chief Executive Officer Elon Musk for alleged violations of Rule 10b-5 of the Securities Exchange Act of 1934 (SEA). Left claims that Musk “artificially manipulated the price of Tesla securities to damage [Tesla’s] short-sellers . . . by issuing materially false and misleading information.” Short-sellers are those who sell stocks they believe will go down in price, in order to later purchase them back at the lower price to gain a net profit. This lawsuit is the most recent development following an August 7, 2018 tweet, in which Musk announced that he was “considering taking Tesla private” once shares reached $420, and that funding to do so had been secured. Musk’s tweet caught investors off guard and led to a surge in Tesla share prices, which saw an increase of more than 13 percent by the end of the day. Ultimately, Tesla’s board of directors concluded that it would not turn Tesla into a privately-owned company. As Musk discussed in a blog post on August 24, despite his belief that there is more than enough funding to take Tesla private, the board determined, and investors agreed, that Tesla is better suited as a public company. Despite this reversal by Tesla, the company, which was already under investigation by the S.E.C., could be on the hook for the losses suffered by short-sellers in the wake of Musk’s tweet. Left estimates that Musk’s tweet cost short-sellers upwards of $1.3 billion in one day.

The Legal Standard

Rule 10b-5 creates two bases for liability in connection with the purchase or sale of any security: (1) making any untrue statement, or (2) omitting any material fact necessary to keep a statement from becoming misleading. Actions under either of these avenues of liability require plaintiffs to establish that the defendant made the false or misleading statement either consciously or recklessly. In applying Rule 10b-5, courts have held that companies may be liable for statements of opinion by top corporate officials, but only if they are made without a reasonable basis.

However, the law differentiates between different types of statements. Where liability arises out of a forward-looking statement, courts look at whether there was actual knowledge that the statement was false or misleading. Under certain circumstances, section 230.175 of the SEA gives “safe harbor” to forward-looking statements and protects issuers of such statements from incurring liability. As defined by statute, forward-looking statements may include statements of management’s plans and objectives for future operations, as well projections of capital structure. Capital structure is most frequently understood as “the mix of debt and equity by which a business finances its operations” and includes both short-term and long-term debts, as well as capital stocks. Under these circumstances, plaintiffs bear a greater burden of proof and can only prevail by showing that the forward-looking statement “was made or reaffirmed without a reasonable basis or was disclosed other than in good faith.”

Finally, if a defendant makes a statement that was reasonable at the time it was made, but the statement is later proven to be misleading after new factual developments, the defendant can still avoid 10b-5 liability by correcting the previous statement. Under these circumstances, the defendant has a duty to correct their previous statement in a timely manner, preferably through the same medium through which the initial error was disseminated.

What Happens Next

A major focus of the class action suit against Tesla will likely be whether Elon Musk knew his statements were false or made such statements with a highly reckless disregard for the potential that they were untrue or misleading. Because this determination requires more than mere conclusions of law, Left must include a detailed factual record which indicates Musk’s statement of opinion was made without a reasonable basis or in bad faith. The complaint provides detailed allegations that Musk knew that he did not have the funds to take Tesla private, as well as his possible bad faith intentions for making such an announcement. Although Musk has clashed with short-sellers in the past, and in one instance sent a hedge fund manager shorts as a consolation for the firm’s losses in betting against Tesla, Left is still likely to face an evidentiary hurdle in demonstrating that this particular tweet by Musk was motivated by bad faith.

The safe harbor protection given to forward-looking statements will likely provide another challenge for Left’s case. The complaint makes alternate arguments on the issue of safe harbor—both that the “funding secured” portion of Musk’s tweet was not a forward-looking statement, and that even if it is a forward-looking statement, safe harbor does not apply because Musk knew that it was false. Since the statutory definition of a forward-looking statement includes future plans and projections regarding capital structure, Left faces an uphill battle on his first argument. In the event that the district court treats Musk’s tweet as a forward-looking statement, Left will have the added burden of establishing that the safe harbor does not apply.

Finally, even if Left succeeds in demonstrating that Musk’s announcement was misleading, that does not guarantee a slam dunk for his class action suit. Tesla may still be able to sidestep liability by arguing that Musk’s statement on August 24 of Tesla’s decision to remain public constituted a timely correction of Musk’s initial error.


From the outset, neither side has a clear path to victory in this lawsuit. Though federal law provides protections for issuers of forward-looking statements, it only does so on the conditions that such statements are made on a rational basis and in good faith. Depending upon how the facts are presented, Left could offer a compelling incentive for Tesla to swiftly settle, even given Musk’s public history of disdain towards Tesla’s short-sellers. Although this case is not likely to reach the trial stage, it remains an important lesson in thinking before tweeting.


17 CFR 230.175 (2018).

17 CFR § 240.10b-5 (2018).

Brittany De Lea, Elon Musk taunts Tesla short seller David Einhorn, sends shorts, Fox Business (Aug. 10, 2018).

Capital Structure, Black’s Law Dictionary (10th ed. 2014).

Complaint, Left v. Tesla, Inc. et al, No. 3:18-cv-05463 (N.D. Cal. Sept 06, 2018).

Elon Musk, Staying Public, Tesla Blog (Aug. 24, 2018).

Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976).

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997).

Jonathan Stempel & Sweta Singh, Tesla, Musk sought to ‘burn’ Citron, other short-sellers – lawsuit, Reuters (Sept. 6, 2018, 1:42 PM).

Neal E. Boudette, Tesla Will Not Go Private, Elon Musk Says, Capping Month of Turmoil, N.Y. Times, (Aug. 24, 2018).

Neal E. Boudette & Matt Phillips, Elon Musk Says Tesla May Go Private, and Its Stock Soars, N.Y. Times, (Aug. 7, 2018).

Peter J. Henning, How the S.E.C. May Pursue a Case Against Elon Musk and Tesla, N.Y. Times, (Aug. 24, 2018).

United States v. Schiff, 602 F.3d 152 (3d Cir. 2010).

Photo courtesy of YouTube.

What RBG Says (Or Doesn’t Say) Goes: Understanding the Debate Over The Ginsburg Standard’s Application in the Upcoming Confirmation Hearings of Supreme Court Nominee Brett Kavanaugh

written by Nicolette J. Zulli


It is believed that by 1801, when John Marshall became Chief Justice, the Justices were in the habit of wearing black. Today, every federal and state judge in the country wears a very similar, simple, black robe. Retired Associate Supreme Court Justice, Sandra Day O’Connor has said, “I am fond of the symbolism of this tradition. It shows that all of us judges are engaged in upholding the Constitution and the rule of law. We have a common responsibility.”

While the donning of the black robe is a symbolic act that historically prioritizes the court over the individual, some believe that when it comes to the Supreme Court, the emperor is expected to ‘wear no clothes’.” That is, that the Senate and we, as the American public, should mandate full transparency of an individual nominee’s past rulings and opinions on certain issues,

in order to understand how he or she can be expected to exercise their power as a U.S. Supreme Court Justice. However, Justice Ruth Bader Ginsburg said, or rather, did not say otherwise.

The Ginsburg Standard

Friday, August 3, 2018, was the 25th Anniversary of Ruth Bader Ginsburg’s confirmation to the Supreme Court of the United States. In the wake of Supreme Court nominee Brett Kavanaugh’s confirmation hearings next month, the anniversary of Ginsburg’s confirmation has revived conversation among liberals and conservatives on Capitol Hill about a precedent set during her hearings all those years ago, which has become known as “The Ginsburg Rule” or “Ginsburg Standard”.

Under the so-called “Ginsburg Standard,” a nominee for the Supreme Court may withhold from commenting on topics or cases that could come up before the bench in the future.

The standard originated when Justice Ginsburg, during her confirmation hearings, declined to answer certain questions that she believed could come back before the Court in the future. For example, she did not comment on topics such as the right to bear arms, the death penalty and private school vouchers. A recent Supreme Court Nominee Responsiveness Study (“Responsiveness Study”) conducted by Lori Ringhand, Professor of Law at the University of Georgia, and Paul M. Collins Jr., Professor of Political Science and director of Legal Studies at the University of Massachusetts, found that Ginsburg refused to respond approximately 10% of the time.

Ginsburg is famous for her quote during the U.S. Senate Judiciary Committee Hearing on July 20, 1993, in which she stated: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”

While she declined in her hearings to talk about future cases, Ginsburg did address key issues during her hearings, including touchy topics ranging from abortion, to the right of privacy, to gender discrimination, to free speech. To this end, she was willing to comment on precedent, explained Margo Schlanger, a current professor at the University of Michigan Law School and former Ginsburg clerk. “So when she is asked about prior cases, she talks about her views in those cases. What she declined in her hearings to talk about was future cases.”

The Model Code of Judicial Conduct was created in 1989 ― before Ginsburg’s hearings ― to reflect norms for judges and safeguard public confidence in the judicial system. Rule 4.1(A)(12) counsels judges not to opine on subjects that may later arise at the bench. Thus, some view The Ginsburg Standard or Rule less as a novel precedent set by the Justice, and more so her memorable articulation of Rule 4.1(A)(12) for the Committee.

Judges today have taken the Ginsburg Standard much farther. According to Aaron Saiger, a former Ginsburg clerk and current law professor at Fordham School of Law, “What has happened to the Rule since is that, as the nominations and the hearings became more and more partisan, the reticence of the nominees grew. I wouldn’t say I can say that with respect to every nominee . . . but as a trend, the unwillingness of judges to answer questions has gone up.”

Despite vocal objections from senators, in recent hearings, a number of lower court judges have refused to express an opinion on whether or not they affirm the Supreme Court’s landmark decision in Brown v. Board of Education. For example, Supreme Court Justice Neil Gorsuch would not explicitly agree with the outcome of the decision, only going as far as to say it was “a correct application of the law of precedent.” When pressed further, Gorsuch later called it a “great and important” decision. In direct comparison, Ginsburg fully affirmed the Brown decision in her Senate testimony. She also opined on other major cases, stating that Dred Scott v. Sandford and Korematsu v. United States were unequivocally wrong. The Responsiveness Study noted that Ginsburg expressed many more opinions than Gorsuch. In fact, it showed that Ginsburg responded to eight times as many civil rights questions, and her “responsiveness ratio” ― which compares the number of firm answers to the number of demurrals ― was far higher than Gorsuch’s. The study concludes that Gorsuch went further than Ginsburg by avoiding commentary on even settled precedent. The Responsiveness Study showed that Gorsuch was the least responsive nominee in 50 years, refusing to clearly answer questions about even canonical cases, such as Brown v. Board of Education. The study showed that Ginsburg was among the most responsive nominees ever to appear before the Senate Judiciary Committee. According to the study, the evasiveness titleholder was Justice Abe Fortas, nominated by President Lyndon Johnson to be Chief Justice in 1968.

While judicial nominees have invoked the Ginsburg Rule for decades, it is only recently that nominees have been accused of abusing this “Rule” to avoid answering questions in any meaningful way.

The Issue

With President Donald J. Trump’s latest nomination of Brett Kavanaugh to the Supreme Court, a significant debate between liberals and conservatives is whether the “Ginsburg Rule” is a well-tenured excuse for nominees to avoid answering the Senate’s questions during confirmation hearings, thereby threatening constitutional power.

Conservatives are now rebroadcasting portions of Ginsburg’s testimony to argue that her example should apply to Brett Kavanaugh. On July 10, 2018, the day after Kavanaugh’s nomination, Senate Majority Leader Mitch McConnell referred to Ginsburg’s “no forecast, no hints” soundbite and said, “I think we all should remember that [S]tandard.”

This is because conservatives believe that, as a result of forcing nominees to opine on such matters, the Supreme Court’s hands have become patently obvious and predictable – a failure of our judicial system. The conservative view is that a Supreme Court Justice should be entirely unpredictable, not a “hardened ideologue.”

While conservatives concede that a Justice’s past rulings will reveal his or her leanings, the concern is that placing such extreme emphasis and dependence on a Judge’s past rulings to inform and be predictive of his or her future rulings is transforming the judiciary into a “mockery.” This way, a party coming before the court can win simply by tailoring their argument to a particular Justice. There would be no need for written briefs, oral arguments, contemplation, or written opinions if we already knew how each Justice will decide.

When the Justices decide the fewer than 80 cases that make it to the Court each year, they must exercise not just sharp legal reasoning, but also sound legal judgment. They must take the mélange of possibilities rendered by tools of constitutional interpretation and mold them into a coherent body of law, consistent with our most fundamental constitutional commitments. This is their constitutional onus.

Until recently, nominees of both parties have seemingly understood this. They combined their privilege to avoid some questions with the recognition that they have a corresponding duty to answer others. Liberals argue that Senators — and the American public — should insist that Brett Kavanaugh do so as well, during his confirmation hearings in September.

They argue that a nominee’s willingness to accept, in public and under oath, the correctness of previously contested, but no longer controversial, constitutional cases and issues is critical to the success of the confirmation process.

Seeing as the entire structure of the U.S. federal government is one of checks and balances, the liberal view is that our founders almost certainly saw the confirmation process as an essential check on how Supreme Court power is exercised — a feature to allow indirect control over the court. That is, by putting the appointment of Supreme Court justices in the hands of elected officials, they ensured that the court is part of that system.

While liberals agree that a nominee’s refusal to offer opinions on current disputes is understandable, they contend that his or her affirmation of the contemporary constitutional canon is an important way in which we as a society validate the Supreme Court’s constitutional choices over time.

Does the Naked Emperor Really Validate SCOTUS’ Constitutional Choices?

But, does a Judge’s responsiveness during his confirmation hearings really paint a definite picture of his judicial philosophy for the Senate and American Public? History suggests that a greater understanding of a Judge as an individual, including his responsiveness, may not always foreshadow his or her rulings on certain issues.

A prime example is that of newly retired Supreme Court Justice Anthony Kennedy. Kennedy’s resume might have made his ideology seem straightforward. Before he became a judge, Kennedy worked as a Republican lobbyist in California. He was then appointed to the federal bench by Republic president, Gerald Ford, and to the Supreme Court by Republican President, Ronald Reagan.

However, his views proved much harder to pigeonhole. His tenure at the High Court was marked by his ability to cross ideological lines and serve as a deciding swing vote. Notably, he sided with the court’s liberals more frequently on issues involving LGBTQ rights, criminal justice, and, in some cases, abortion rights, including the Whole Women’s Health and Obergefell decisions. Yet, he also backed conservatives in decisions that blew up campaign finance restrictions and weakened the Voting Rights Act. He voted consistently against affirmative action before upholding The University of Texas’s race-conscious admissions policy in 2016.

The point being, that despite a resume and paper trail riddled with past rulings and political leanings of a certain persuasion, a Judge’s past does not truly envisage his future when he owes a duty of impartiality.

Similarly, Justice O’Connor demonstrated her political prowess as an Arizona assistant attorney general and Republican majority leader of the Arizona Senate. She then arrived at the Supreme Court. Over the years, as her influence grew in an increasingly polarized nation and as ideological divisions intensified on the Court, O’Connor managed to find the middle ground, taking an incremental approach to the law, while persuading her colleagues to accept her views. She developed a highly specific, fact-based jurisprudence, which made it difficult for attorneys to predict how she would vote.

Overall, “the social construction of judicial power is a complicated process, particularly in hybrid political regimes,” like that of the current Court.

Regardless of party affiliation or political inclination, none of us are true cognoscente when it comes to the art of human behavior. Liberals and conservatives in this debate are missing the point. Because to accurately understand a Judge as an individual, would mean not only seeking out his or her opinions on landmark decisions like Obergefell or Brown or Dred Scott, but understanding his or her political positions, religious views, life experiences, and childhood upbringing – all things that create the lens or reality through which that Judge views his decision-making. Perhaps then we might inch closer to predicting his or her decision on future rulings.

However, understanding a Judge on this level would mean prioritizing the individual over the Court. Fundamentally, we must remember that politics and realpolitik are two very different things. Understanding a Judge’s politics has no place in the formation of an impartial Court, because such an inquiry inherently involves a seeking out of moral and ideological, rather than practical, considerations.

From this perspective, it may seem the Ginsburg Rule is not so much an excuse to avoid answering the Senate’s questions, so much as it is a means by which a Judge can ensure the information he or she provides only goes to understanding his or her judicial philosophy — not his or her personal views.

The Likely Role of “The Ginsburg Standard” in Kavanaugh’s Confirmation Hearings

That said, a Judge’s background, resume, religious beliefs, and political affiliation is inextricably connected to his or her judicial philosophy. In this sense, understanding his or her judicial philosophy is a much better, and more appropriate, predictor of his or her future rulings.

In the Responsiveness Study, Ringhand observed that for Ginsburg, given how much she had written about abortion, it would have been very hard not to answer questions about that subject at her confirmation hearing. And, Ringhand observes, there will be similar issues that Kavanaugh will likely have to address.

“Judge Kavanaugh, with his paper trail, will actually give us quite a few firm responses to non-controversial issues that he’s written about,” she said. Perhaps, he may give us responses on some controversial ones — including his one opinion about abortion, and his many opinions and other writings about presidential power, national security, and his suggestion that presidents should be immune from criminal investigation.

Therefore, despite the ongoing debate among conservatives and liberals as to whether “The Ginsburg Standard” may be properly invoked, it is likely that Judge Kavanaugh will produce a well-balanced set of responses to satisfy all partisan concerns when appearing before the Senate Judiciary Committee next month.

Only time will tell, but it appears that at least as applied to Judge Kavanaugh, the Ginsburg Standard remains a viable tool to quiet the noise of party-political probing and preserve the sanctity of what it means to don the black robe.



Supreme Court to Decide iPhone App Store Case

Written By Stefani Joslin


On Monday, June 18, the United States Supreme Court decided that it will hear arguments regarding allegations that Apple’s iPhone customers are paying high prices for apps.


In 1977, the Supreme Court ruled in Illinois Brick Co. v. Illinois that only direct purchasers, not purchasers who buy products further downstream, may sue under the federal antitrust law. Today, four Apple iPhone customers are seeking damages alleging that Apple has violated antitrust law by “monopolizing the app market”.

The case stems from a lawsuit that was initiated in California seven years ago. Prior to bringing this to the Supreme Court, a federal court decided that the company could not be sued by consumers since the consumers were not directly overcharged. The panel stated that Apple was merely serving as a distributor and selling the apps directly to customers and only pocketing a part of the apps’ profits. In 2017, the 9th U.S. Circuit Court of Appeals reversed the decision, reasoning that consumers had a right to sue since the consumers were buying the apps through Apple’s App Store. Apple had won the initial suit.

The Lawsuit

Seven years ago, Robert Pepper and three other iPhone users initiated this lawsuit in federal court in Oakland, California and sought class action status. The suit accused Apple of monopolizing the iPhone app market and selling the apps at a high cost to its customers by only approving apps if the developers agreed to allow the apps to be exclusively distributed within the App Store. This fight is threatening to expose not only the Apple company but also its technology industry peers to antitrust scrutiny. According to these plaintiffs, Apple has “total control” over games and other offerings that are within the App Store.

On June 18th, 2018, the Supreme Court decided that the case will be taken from the 9th U.S. Circuit Court of Appeals. The lawsuit stated that when Apple customers purchase an app from the App Store, “the price includes a 30 percent markup that goes to Apple.”. Apple’s argument is that the company does not actually sell the apps, but rather acts as a “middle man” between the app developers and consumers.

Apple’s Argument

Apple has argued that it cannot be sued due to the fact the commission is levied by the app developers, not by the consumers bringing suit. Other companies, such as Google, Amazon, and Facebook may also be affected from the aftermath of this lawsuit. According to Apple, “[t]his is a critical question for antitrust law in the era of electronic commerce”.

What Could Happen Next

If the Court decides in Apple’s favor, the case could open the door for companies to run similar online marketplaces and have these types of interactions with customers through third-party sellers. The Supreme Court will hear arguments in the case, titled Apple v. Pepper, 17-204, during its upcoming nine-month October term.



Debra Cassens Weiss, Can IPhone users sue Apple for charges to app developers? Supreme Court to decide, ABA Journal (June 18, 2018, 3:06PM).

Greg Stohr, Apple Gets U.S. Supreme Court Review on iPhone App Fee Suit, Bloomberg, (June 18, 2018, 9:31AM).

Ann E. Marimow, Supreme Court to consider cases on the seizure of a $40,000 Land Rover, iPhone apps, and a moose hunter, The Washington Post (June 18, 2018).

Supreme Court to Take Up Apple iPhone App Lawsuit, NBCDFW, (June 18, 2018, 9:26AM).




The Molineux Rule: How This Exception to the Rules of Evidence Could Impact the Harvey Weinstein Trial

Written by Sara Lupi


On May 30, 2018, a grand jury in Manhattan indicted film producer Harvey Weinstein and charged him with Rape in the First Degree, Rape in the Third Degree, and Criminal Sexual Act in the First Degree. Although several women have alleged that Weinstein committed these and similar crimes, the indictment brought by the Manhattan District Attorney’s Office only named two victims. If the case proceeds to trial however, the prosecution may attempt to bring in evidence of Weinstein’s similar past behavior, for the purpose of establishing a pattern of sexual assaults.

Earlier this year, during comedian Bill Cosby’s retrial for sexual assault charges, prosecutors in Pennsylvania utilized the “Doctrine of Chances” as a way to call five other accusers to testify against Cosby. In Pennsylvania, the Doctrine of Chances is a narrow exception which operates similarly to Federal Rule of Evidence 404(b), which bars evidence of prior bad acts for the purpose of establishing propensity to commit a certain crime, but allows such evidence for other purposes. Evidence of prior bad acts can be admitted in order to establish something other than propensity “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” In the Cosby trial, the five other accusers had reported sexual assaults similar to the sexual assault on the victim by Cosby. In a pretrial motion, the Montgomery County District Attorney wrote, “as the number of victims reporting similar, drug-facilitated sexual assaults by defendant increases, the likelihood that his conduct was unintentional decreases … defendant’s prior bad acts are admissible under the “doctrine of chances” to negate the presence of any non-criminal intent and, concomitantly, to establish an absence of mistake.”

The Molineux Rule

In New York State, where Weinstein is going to be tried, the Doctrine of Chances is known as The Molineux Rule, which gets its name from a New York State Court of Appeals decision in the case of People v. Molineux. Under this rule, prosecutors can bring in proof of a defendant’s prior bad acts or crimes not to show criminal propensity, but to “establish motive, opportunity, intent, common scheme or plan, knowledge, identity or absence of mistake or accident.” [1] It should be noted that New York State has not adopted Federal Rule of Evidence 413, which allows evidence of similar crimes in sexual assault cases for the purpose of proving propensity to commit sexual crimes. So, even though Molineux has the potential to let evidence of similar prior bad acts in at trial, the bad acts cannot be used to prove propensity, but rather to show one of the previously mentioned purposes.

The exception is used rarely in New York State, because evidence of prior similar bad acts is considered highly prejudicial. The probative value must be weighed against the prejudice the evidence would cause the defendant. Additionally, the “evidence must be ‘highly probative’ and ‘directly relevant’ to the purpose for which it is offered and have a natural tendency to prove such purpose.” This is an extremely high threshold for prosecutors. The rationale behind Molineux is that if a defendant commits the same bad acts, or commits the same crime multiple times, in a similar manner, there is a high probability that this is not just coincidence.

How Molineux May Be Used in the Case Against Weinsten

Here, many of Weinstein’s accusers have brought forth similar stories of his abuse, which has been called “casting-couch abuse.” Women allege that Weinstein took advantage of his position as a Hollywood producer to force young actresses into having sex with him or performing other sexual acts. Weinstein’s own defense attorney, Benjamin Brafman, told the press after his arraignment that Weinstein “did not invent the casting couch in Hollywood,” which has been seen as a glimpse into a possible defense for his client: that this was not rape, but rather a choice made by each actress in an effort to advance their careers. However, this comment also foreshadows the possible use by prosecutors of the Molineux Rule, to show that Weinstein’s alleged actions were part of a common scheme or plan.

Currently, it is unclear whether Weinstein’s case will proceed to trial. While he has entered a plea of not guilty, some experts believe the case may end with a plea bargain. His defense attorney has stated that if the case does go to trial, he will consider attempting to sever the rape charges from the charge of criminal sexual act, and proceed with two separate trials. His next court date is scheduled for September 20th in Manhattan.


Aaron Katersky and Bill Hutchinson, Harvey Weinstein pleads not guilty to rape charges, ABC News (June 5, 2018),

Danny Cevallos, How Weinstein lawyer’s ‘casting couch’ comment could impact his defense strategy, NBC News (May 27, 2018),

Debra Cassens Weiss, Harvey Weinstein is indicted; could other accusers testify at trial? ABA Journal (May 31, 2018),

Fed. R. Evid. 404(b), 413.

Montgomery County District Attorney’s Office Motion to Introduce Evidence of 19 Prior Bad Acts of Defendant, Jan. 18, 2018.

People v. Molineux, 168 N.Y. 264 (1901).

People v. Cass, 784 N.Y.S.2d 346 (Kings County 2004).

Tracy Connor, Harvey Weinstein surrenders to NYC police, is charged with rape, NBC News (May 25, 2018),



Controversial Cake: The Masterpiece Cakeshop Decision

Written by Michael Varrige



Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission originated as a complaint made to the Colorado Civil Rights Commission by a gay couple against a baker who refused to bake a custom wedding cake for their wedding back in 2012 due to his religious objection to same-sex marriage (though the baker did offer to sell any other product to the couple, just not a custom wedding cake). The Commission ruled in favor of the couple, finding that the baker’s refusal to make the wedding cake violated Colorado’s Anti-Discrimination Act. The Commission’s decision was affirmed by the Colorado Court of Appeals and was not heard by the Colorado Supreme Court. The Colorado Anti-Discrimination Act states, in part, “it is a discriminatory practice and unlawful for a person . . . to refuse, withhold from, or deny to any individual or group because of . . . sexual orientation . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation”. It also delineates the process by which a complaint will be heard—by the Commission and eventually appealed to the Colorado Court of Appeals and the Colorado Supreme Court.

In short, the owner of Masterpiece Cakeshop, Jack Phillips, argued that Colorado’s Anti-Discrimination Act violated his First Amendment rights of free exercise of religion and freedom of expression. The Commission countered that a cake was not a form of expression and that the act of baking a cake was neither participating in nor condoning same-sex marriage. For a more thorough look at the arguments made in front of the Supreme Court, please see a prior Legal Pulse post-Review: Masterpiece Cakeshop v. Colorado Civil Rights Commission compiled by Lacey Grummons, the link appears below.



Justice Anthony Kennedy, writing the majority opinion joined by five of his colleagues, reversed the decision by the Colorado Court of Appeals on the ground that the Commission violated Mr. Phillips’ right of free exercise of religion. Justice Kennedy was joined by traditionally conservative-leaning Justices Neil Gorsuch and Samuel Alito. Typically liberal-leaning Justices Stephen Breyer and Elena Kagan also joined the majority opinion. Justice Clarence Thomas concurred in judgment, but wrote his own separate concurrence instead of joining the majority

The majority determined that “the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.” Essentially, the Court ruled that while Colorado’s Anti-Discrimination Act does not generally violate the free exercise clause, Colorado’s process of determining whether an action has violated the Anti-Discrimination Act must be conducted in a manner that is neutral towards religion. Justice Kennedy pointed to what he called “open hostility” at multiple times throughout the public hearings such as “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust” and “one of the most despicable pieces of rhetoric that people can use” in reference to using religion to deny wedding-related services to a same-sex couple.

The Court further took note that no other commissioners took issue with any of these statements as well as what it perceived as disparate treatment of bakers who refused to bake anti-same-sex marriage cakes along with religious texts. These bakers, who appeared before the same Commission as Phillips, were allowed to refuse to bake cakes with anti-same-sex marriage messages because it violated their anti-discrimination beliefs, while Masterpiece Cakeshop was compelled to by the Commission and the Court of Appeals.

The Court then segued to discuss that the Free Exercise Clause “bars even subtle departures from neutrality” and that the State cannot impose regulations that “are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment.” Justice Kennedy followed this discussion by ultimately determining that weighing the State’s interest in protecting its citizens from discrimination could be weighed with sincere religious objections by owners of public accommodations but only in a way that is neutral towards religion. In this case, the Justices did not believe that the claims were weighed in a religiously neutral way and reversed the lower court’s judgment. While ruling in this manner, the Court also felt it necessary to state “[t]he outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs”, leaving the door open for further discussion on the topic, both by the Supreme Court itself and in the states.


Three separate concurrences were written, one by Justice Kagan joined by Justice Breyer, one by Justice Gorsuch which was joined by Justice Alito and another written by Justice Thomas which was joined by Justice Gorsuch.

Justice Kagan focused her concurrence on the disparate treatment between Phillips and the other bakers, who were allowed to refuse to bake cakes with messages they disagreed with. Justice Kagan further indicated that she believed that Phillips violated the Colorado Anti-Discrimination Act and that the Commission could have found that based on a religiously neutral, plain reading of the statute. However, she did not believe that the Commission was religiously neutral and therefore found for Phillips.

Justice Gorsuch, using the doctrine of strict scrutiny, determined that the Commission failed to act neutrally towards Phillips’ religious beliefs and did not satisfy the strict scrutiny test as required by the Free Exercise Clause. He also focused on what he saw as disparate treatment in bakers as previously discussed, allowing a baker to deny anti-same-sex marriage messages as a result of his religious beliefs but not allowing Phillips to decline to bake a cake which in his view was endorsing same-sex marriage due to his religious beliefs. Justice Gorsuch also focused on what he saw was a lack of discriminatory intent on the part of Phillips and determined that he brought a conclusive First Amendment claim which entitled him to judgment.

Justice Thomas first determined that the Commission violated Phillips’ free exercise rights along with the majority. He, though, went further to discuss the free-speech claim made by Phillips in his brief to the Court. Justice Thomas indicated that public-accommodation laws, like the Colorado Anti-Discrimination Act, generally regulate conduct and do not burden free-speech rights though sometimes these laws can burden free-speech rights. He further notes that “expressive conduct” can be burdened by these laws including many actions relating to the American flag. Justice Thomas found that wedding cakes communicate a message that “a wedding has occurred, a marriage has begun, and the couple should be celebrated” and further found this to be expressive conduct which Colorado could therefore not compel or restrict. He also noted that Colorado could restrict the expressive conduct if it would have punished the conduct with or without the expressive component but seeing as it would not have punished him for generally not making custom wedding cakes, that principle did not apply.


The single dissent in this case was written by Justice Ruth Bader Ginsburg and was joined by Justice Sonia Sotomayor. Justice Ginsburg noted that Colorado could protect gay persons, business owners cannot put up signs saying that they will not serve gay persons, and gay persons may be protected from indignities in an open market, all of which were stated by the majority opinion as well. Justice Ginsburg reconciled the disparate treatment by noting that the bakers who declined to make anti-same-sex marriage cakes did so as a result of the discriminatory message, without regard to the actual characteristics of the requesting person, whereas Phillips declined to make the cake as a result of the identity of the persons requesting the cake. Justice Ginsburg further did not agree that the statements of one or two commissioners could overcome the fact that Phillips refused to bake a cake for a same-sex couple, focusing on the procedural guarantees in Colorado which she believed were followed.

Possible Ramifications

The possible ramifications of this decision on future cases and on the public in general seem to be split along ideological lines, at least in the first weeks following the release of this decision. Some have taken it allow a wide license to discriminate, including a Tennessee business owner who put up a sign saying “No Gays Allowed” in the window of his hardware store. Others see the decision as narrow in scope (while perhaps not narrow in how many justices concurred in judgment), by explicitly stating that further disagreements would still need to be decided based on the facts of those individual cases. Others still see this as a “hollowing out” of same-sex marriage rights and allowing the first affirmation in a “slippery slope” leading to more widespread discrimination. While the ultimate impact of this case on anti-discrimination laws, free exercise of religion, and free speech remains to be seen, one thing that is certain is this is not the end of this conversation but merely the beginning.



Lacey Grummons, REVIEW: Masterpiece Cakeshop v. Colorado Civil Rights Commission, Syracuse L. Rev. Legal Pulse (Dec. 14, 2017).

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___ (2018).

Amy Howe, Opinion analysis: Court rules (narrowly) for baker in same-sex-wedding-cake case, SCOTUSblog (June 4, 2018, 4:07 PM).

Mark Sherman, Supreme Court sides with Colorado baker on same-sex wedding cake, Chicago Tribune, (June 4, 2018).

Ewan Palmer, No Gays Allowed’ Sign Returns to Tennessee Store Following Masterpiece Cakeshop Supreme Court Ruling, Newsweek, (June 8, 2018, 9:43 AM).

Rachel B. Tiven, Masterpiece Cakeshop Ruling Is Not As Limited As Some Might Think, Huffington Post, (June 5, 2018, 7:05 PM).

Photo courtesy of Martha Stewart.

Medicaid Covers Treatments for Non-Binary Transgender New Yorkers

The views expressed in this article do not necessarily reflect those of the Legal Pulse Editor or the Syracuse Law Review.

Written by Cynthia Moore


On May 11, 2018, New York State Department of Health overturned a 2017 decision by an administrative judge, who upheld a Medicaid insurer’s denial of coverage for a mammoplasty procedure for a nonbinary transgender person. This decision affirmed the right to Medicaid coverage for surgeries or procedures for gender nonbinary and nonconforming residents of New York.

Gender Dysphoria as a Diagnosis

“Gender identity disorders” were first introduced in the DSM-III, a diagnostic manual authored by the American Psychiatric Association, as a psychosexual disorder, which later moved to a section on disorders manifested in infancy, childhood, or adolescence. In the DSM-IV, gender identity disorder diagnoses moved to the chapter on sexual and gender identity disorders. In the most current Diagnostic and Statistical Manual of Mental Disorders, the DSM-V, the diagnosis of gender identity disorder was removed and a new chapter named Gender Dysphoria was created. A diagnosis of gender dysphoria is required for Medicaid coverage of medically necessary treatments and procedures related to this diagnosis.

Non-Binary Gender Identity

Non-binary gender identities are generally those that do not exclusively fall within the male or female categories. Examples of these identities include: “genderqueer, gender fluid, agender, and bigender.” Those who identify within this spectrum may reject gender entirely, blend features of both, or fluctuate between the traditional roles of masculinity and femininity.


In a 2016 study, the number of transgender individuals in New York was estimated as 78,600 or .51% of the total population. Nationally, the number of adults who self-identified as transgender was estimated as 1.4 million or .6% of the U.S. population. Nevertheless, population estimates are difficult to track since they have not been included on questionnaires for the census and American Community Survey. The U.S. Census Bureau stated that it does not plan to propose this topic to Congress for the 2020 Census and American Community Survey, which may make it difficult to track statistics on Americans who identify within the transgender population.


In 2014, the Legal Aid Society, Sylvia Rivera Law Project, and Willkie Farr filed a federal lawsuit opposing a state regulation that banned Medicaid coverage for treatments and procedures related to sex reassignment. In July 2016, U.S. District Judge Jed Rakoff for the Southern District of New York decided Cruz v. Zucker in favor of the plaintiffs. The ban was repealed and the regulation was amended to require Medicaid to cover medically necessary procedures for those with a gender dysphoria diagnosis. New York was the ninth state to adopt a policy allowing Medicaid to cover gender affirmation surgery.

As a result of this decision, four academic medical centers—Mount Sinai, NYU Langone, Montefiore, and Northwell—created programs to perform these surgeries. In 2015, Medicaid covered 115 procedures and in 2016 it covered 257 procedures, marking a substantial increase in services provided.

Medicaid Denial of Coverage

In 2017, a 27-year-old non-binary transgender individual sought a procedure for a reduction mammoplasty. The patient’s doctor requested Medicaid coverage for the procedure and was denied by the plan, Healthfirst. The patient sought an appeal but the administrative law judge held that the regulation did not apply to non-binary individuals, requiring that the individual transition strictly from male to female or female to male.

Department of Health Overturns the Denial

In April, legal counsel who represented the plaintiff in the 2016 federal case sent a letter to the New York State Office of Attorney General stating that the fair hearing decision was decided incorrectly, since it violated the final judgement and order of Cruz v. Zucker. Two weeks later, the Department of Health amended the decision, noting that the 27-year-old met the requirements of the statute and the insurer should have approved coverage of this procedure. In its decision, the Department of Health noted:

“[r]equiring conformance to the opposite gender is inconsistent with the diagnosis of gender dysphoria as specified by the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which specifically provides that individuals with [sic] diagnosed with gender dysphoria have a marked incongruence between the gender they have been assigned to (usually at birth, referred to as “natal gender”) and their experienced or expressed gender, and experience stress about this incongruence. Experienced gender may include non-binary gender identity. Therefore, the distress associated with gender dysphoria is not limited to a desire to just be of the opposite gender, but may include a desire to be non-binary.”

Advocates noted the importance of this decision in increasing access to healthcare for non-binary and non-conforming transgender residents of New York, particularly for those who fall below the poverty line. One 2015 survey found that transgender residents of New York were more likely to experience poverty and unemployment than the general population: 37% of survey respondents were living in poverty, more than double the national poverty rate at the time of the survey and 18% were unemployed, which was three times greater than the national unemployment rate.

This decision was made three weeks after the Trump administration expressed a plan to roll back a rule issued by President Obama, which “. . . prevents doctors, hospitals and health insurance companies from discriminating against transgender people.” If President Trump were to revoke this rule, it would apply to doctors who receive Medicaid payments, hospitals that accept Medicare plans, and health insurance companies.


Andrew R. Flores et al., How Many Adults Identify as Transgender in the United States? 2­–4 (2016).

Arielle Webb et al., Non-Binary Gender Identities Fact Sheet 1 (2015).

Christina Capatides, The type of transgender you haven’t heard of, CBS News (Mar. 27, 2017).

Cruz v. Zucker, 195 F. Supp.3d 554 (S.D.N.Y. 2016).

Dan Goldberg, Transgender programs flourish following New York Medicaid coverage, Politico (Dec. 12, 2017).

Hansi Lo Wang, U.S. Census To Leave Sexual Orientation, Gender Identity Questions Off New Surveys, NPR (Mar. 29, 2017).

In Historic Decision, NYS Acknowledges Gender Non-Conforming New Yorker’s Right to Health Coverage, The Legal Aid Society: News (May 17, 2018).

In the Matter of the Appeal of Redacted, F.H. No. 7510067L (St. of N.Y. Dep’t of Health, Apr. 6, 2017).

Jan Hoffman, Estimate of U.S. Transgender Population Doubles to 1.4 Million Adults, N.Y. Times (June 30, 2016).

Kenneth J. Zucker, Management of Gender Dysphoria: A Multidisciplinary Approach, in The DSM-5 Diagnostic Criteria for Gender Dysphoria 33 (Carlo Trombetta et al. eds., 2015).

MP McQueen, NY Health Dept. Affirms Right to Medicaid Coverage for Gender Dysphoria Treatment, N.Y. L. J. (May 18, 2018).

National Center for Transgender Equality, 2015 U.S. Transgender Survey: New York State Report 1 (2017).

N.Y. Comp. Codes R. & Regs. tit. 18, § 505.2 (2018).

Robert Pear, Trump Plan Would Cut Back Health Care Protections for Transgender People, N.Y. Times (Apr. 21, 2018).

Photo courtesy of WQAD.