Yearly Archives: 2018

By Timothy Sorenson, CLS ’20

The Uniform Probate Code prescribes a set of formalities with which non-holographic wills must comply. Prior to the 2008 round of revisions, the Uniform Probate Code stipulated that a document be written, signed by the testator, and witnessed by two parties.[1]In 2008, the witness requirement was altered to permit notarization as an alternative.[2]Notwithstanding the enhanced flexibility this amendment affords unsophisticated testators, it has not traveled particularly well. In fact, as of 2014, only two state legislatures had enacted the provision.[3]

Despite the UPC’s imprimatur, state courts have also treated notarization disapprovingly. Notarization aside, most courts will not apply the doctrine of substantial performance to rescue a will signed only by one witness.[4]However, state courts have similarly declined to apply the substantial performance doctrine to situations in which a testator has secured only a notary’s signature.[5]Given the resounding rejection of will notarization in state judiciaries and legislative bodies, one can’t help but wonder as to the reasons for its unpopularity.

One commentator outlines the destructive impact of notarized wills on the celebrated ritual and protective functions of will formalities.[6]She argues that traditional witnesses are better gatekeepers than are public notaries. Whereas witnesses ensure that the testator possesses the capacity and intent to create a will (free from undue influence), a public notary merely verifies that the signature belongs to the prospective testator.[7]She also warns that loosening the witness requirement detracts from the “seriousness” of will creation, pushing the entire affair further down the slippery slope towards no formalities.[8]

On the other hand, embracing will notarization increases the number of cases in which courts can give effect to the testator’s probable intent. One prominent commentator disagrees with Rhodes, arguing instead that relaxing the witness requirement would undermine neither the ritual nor the protective functions.[9]With respect to the former, he maintains that most people regard notarization as a formal, legally significant procedure.[10]Thus, allowing notarization as a substitute would not enhance the risk of haphazard will creation. Moreover, given the pervasive perception of notarization’s legal potency, allowing notarized wills to be probated would better reflect general expectations.

He also states that other, widely used estate planning documents do not require witness attestation.[11]This observation is especially salient, as the savvy can nowadays (and often do) dispose of their entire estates (or the bulk thereof) outside of probate. On this point, he argues that the protective concerns with respect to unwitnessed wills are overblown. In addition, he advises that a great deal of “confusion and chance for error” could be avoided by rendering uniform the formalities for estate planning documents.[12]

In states that permit holographic wills as well as those that apply the harmless error rule, a failure to adopt the UPC’s suggested reform is of lesser consequence. However, in a state that offers neither amenity, empirical research would be helpful in constructing a profile of the prototypical decedent denied probate due to misplaced reliance on notarization. My strong suspicion is that prospective testators of lesser means, who are more likely to make use of Internet form wills (without consulting estate planning experts), are most likely to be negatively impacted.

[1]Unif. Probate Code § 2-502 (Unif. Law Comm’n 1990, amended 2010).

[2]Id.

[3]Anne-Marie Rhodes, Notarized Wills, 27 Quinnipiac Prob. L.J. 419, 419 (2014).

[4]See, e.g.,Smith v. Smith, 348 S.W.3d 63 (Ky. App. 2011).

[5]See, e.g.,In re Will of Ferree, 848 A.2d 81 (N.J. Ch. 2003), aff’d, 848 A.2d 1 (N.J. App. 2004).

[6]Anne-Marie Rhodes, Notarized Wills, 27 Quinnipiac Prob. L.J. 419 (2014).

[7]Id. at 429.

[8]Id. at 428.

[9]Lawrence W. Waggoner, The UPC Authorizes Notarized Wills, 34 ACTEC J. 83 (2008).

[10]Id. at 85.

[11]Id. at 86.

[12]Id. at 85.

By Elias Feldman, CLS ’20

The parties in Juliana v. US agree that the lawsuit is not grounded in a “question of science.” On this, I think they are mistaken.

Last week saw the latest development in Juliana v. US, a lawsuit originally filed in 2015 by a group of 21 young plaintiffs alleging that affirmative actions taken by the federal government “have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.”[1]The trial was expected to begin on October 29^th, but the Supreme Court granted the Justice Department’s request for a temporary stay to halt the case. The Supreme Court denied the Trump administration’s application for stay on November 2^nd, and on November 5^th, the Department of Justice subsequently filed an application for stay with the District of Oregon, as well as a motion to stay and a writ of mandamus with the Ninth Circuit.[2]On November 8^th, the Ninth Circuit granted a temporary stay in part. The suit remains stayed, but Judge Ann Aiken of the District of Oregon has indicated that she would issue a trial date once the Ninth Circuit lifts this latest temporary stay.[3]

The parties dispute the nature of the case. The nonprofit backing the lawsuit, Our Children’s Trust, maintains that “this is not an environmental case, it’s a civil rights case.”[4]The US government, on the other hand, sees the lawsuit as being, in the words of Acting Assistant Attorney General Jeffrey Wood, “a matter of separation of powers and preserving the opportunity in our system of government for those policies to be decided by the elected branches, not the courts.”[5]Although the parties dispute whether this suit is best thought of as involving a constitutional rights question or a separation of powers question, “both sides seem to agree that the case is not a question of the science.”[6]If this is accurate, I believe the parties are ignoring a crucial factual determination (or rather, a mixed question of law and fact) underlying the case: have the government’s policies contributed to a phenomenon which will, in fact, rob young Americans of a “climate system capable of sustaining human life” in a manner that deprives them of their constitutional rights to life and liberty?[7]To be sure, each side has identified issues that will eventually be critical to the case’s disposition. The scope of the plaintiffs’ constitutional rights to life and liberty is a necessary legal determination the courts will have to make, as is whether the remedy sought by the plaintiff—compelling the US government to “take action to fight climate change”—would constitute “an unconstitutional attempt to use a single court to control the entire nation’s energy and climate policy” contrary to separation of power interests.[8]But these questions are both predicated on the factual determination of whether the threatened future injury is probable enough to give the plaintiffs standing to bring the suit at all. As Professor Hessick explains, “the Supreme Court has held that Article III authorizes federal courts to hear claims alleging future injury only when the threatened injury has a real chance of occurring.”[9]Indeed, all injuries have some probability of occurring, so creating justiciability for any prospective harm that could possibly happen would “effectively empower courts to hear hypothetical disputes” in a manner contrary to the judiciary’s Article III mandate to resolve only real cases and controversies.[10]How speculative a future injury is determines whether it is justiciable or not.[11]

Given the politically charged nature of the climate change debate, how much of a threat this phenomenon is as a factual matter is a controversial determination the court, in its capacity as factfinder, will have to make. The Trump administration is openly hostile to climate science identifying climate change as an environmental concern, with the President previously calling global warming a “hoax,” announcing a withdrawal of the United States from the 2015 Paris climate accord, and removing references to “global warming” and “climate change” from government websites.[12]Concern about this phenomenon is sharply split down party lines: 91% of Democrats worry a great deal about global warming, compared to only 33% of Republicans. 67% of Republicans worry “only a little or not at all” about it.[13]These findings and others highlight how Democrats generally view global warming as a very serious problem, whereas Republicans are generally skeptical that it is a man-made problem at all.[14]The court will have to take one position or the other to resolve this question of standing, and will likely investigate whether the threatened injury claimed by the plaintiffs, as a factual matter, has a “real chance” of occurring.

Such a controversial determination of fact by a federal court is not unprecedented. Far more controversial was the Supreme Court’s determination in Roe v. Wade that a fetus, under “historical understanding and practice, the structure of the Constitution, and the jurisprudence of the Court,” is not a person of the kind protected under the Fourteenth Amendment. Justice Blackmun made more of a legal determination there than a factual one, but in effect he codified a factual proposition that was at that time, and still is, at odds with the beliefs of many Americans. The factual determination the court would have to make determining whether or not global warming is a real phenomenon is far less philosophical and more scientific. In fact, the consensus of over 97% of actively publishing climate scientists is that climate-warming trends pose “a growing threat to society.”[15]We can reasonably expect the court to decide whether it will take this assessment as fact, despite widespread opinion to the contrary, and use it to make a legal determination. This would certainly be controversial but would not require the judiciary to encroach upon the legislature’s domain any more than it has done in the past.

[1]Umair Irfan, A major climate change lawsuit is on hold. Again., Vox(accessed November 13, 2018), https://www.vox.com/2018/11/2/18029146/climate-change-lawsuit-children-scotus-supreme-court-juliana, citing to Juliana v. United States, 217 F. Supp. 3d 1224, 1261 (Ore. 2016).

[2]Juliana v. US – Climate Lawsuit, Our Children’s Trust(accessed November 13, 2018), https://www.ourchildrenstrust.org/us/federal-lawsuit/.

[3]Id.

[4]Ifran, supranote 1.

[5]Id.

[6]Id.

[7]Id.

[8]Id.

[9]F. Andrew Hessick, Probablistic Standing, 106 Nw. U. L. Rev.55, 57 (2012).

[10]Id., 56-57.

[11]Id., 57.

[12]Megan Brenan and Lydia Saad, Global Warming Concern Steady Despite Some Partisan Shifts, Gallup(accessed November 13, 2018), https://news.gallup.com/poll/231530/global-warming-concern-steady-despite-partisan-shifts.aspx.

[13]Id.

[14]Id.

[15]Scientific consensus: Earth’s climate is warming, NASA Global Climate Change: Vital Signs of the Planet(accessed November 13, 2018), https://climate.nasa.gov/scientific-consensus/.

By Sean Larner, CLS ’20

A few months ago, the Roberts Court decided a landmark case, Carpenter v. US, that represents the Court’s first meaningful step to protect American privacy interests against government intrusion in the digital age.

Evidentiary exclusion is the only reliable bulwark American citizens have against illegal government intrusion.  However, since the landmark rulings in Weeks v. US, 232 U.S. 383 (1914), where the Supreme Court ruled that evidence obtained pursuant to a Fourth Amendment violation was subject to exclusion, and Mapp v. Ohio, 367 U.S. 643 (1961), which applied the exclusionary rule to the states through the Fourteenth Amendment, the Burger, Rehnquist and especially the Roberts Courts have chipped away at the initially expansive holdings in Weeksand Mapp. Since Mapp, subsequent Courts have prohibited exclusion for good-faith violations, lack of “standing” (which is more substantive than procedural in Fourth Amendment law), knock-and-announce violations, knowing exposure to third-parties, along with grand jury proceedings altogether. But on June 22, 2018, something changed. Amid a spate of conservative decisions in the 2017-2018 Term, the Supreme Court made a shocking announcement in Carpenter v. US, 267 U.S. 132 (2018), that the government’s acquisition of cell-site information location (CLSI), which is the cell phone data obtained from nearby cell towers used to triangulate cell phone locations, constituted a “search” within the Fourth Amendment and was thus susceptible to the Warrant Requirement.

Ever since the decision in Katz v. US, 389 U.S. 347 (1969), over a half-century ago, expanded the scope of Fourth Amendment protections in light of technology’s inexorable advance, there has been a perhaps unanticipated contingency: the birth of the “knowing exposure” doctrine. Under the knowing exposure doctrine, any information shared voluntarily with a third party, no matter how sensitive, from telephone records to bank records, are not within the ambit of the Fourth Amendment. Because an individual “voluntarily” shared his bank records with the bank, government acquisition of those materials does not constitute a “search.” Under the capacious third-party doctrine, a warrant is not needed to compel production––just a subpoena. Katz and the third-party doctrine met a notable limitation in Carpenter.

Timothy Carpenter was convicted of leading a string of armed robberies in multiple states. Under the authority of the Stored Communications Act, the FBI obtained Carpenter’s CLSI, which put him within proximity of four of the robberies. All the FBI needed to prove to get a magistrate judge to sign off on a subpoena was the relevance of the evidence to a criminal investigation, as opposed to the more onerous probable cause requirement needed to obtain a search warrant. The CLSI evidence was adduced at trial and the defense counsel’s objection was overruled. Carpenter was convicted and sentenced to 116 years in federal prison.

In a shocking break from the Court’s longstanding adherence to the third-party doctrine, Chief Justice John Roberts wrote for the majority that CLSI is by its nature a unique type of record that implicates Fourth Amendment concerns about “arbitrary police power” and “too permeating police surveillance,” recognizing that cell phones today have virtually become a part of the human anatomy. Roberts indicated that there may be limitations to the third-party doctrine in the digital era when the type of record at issue is collected automatically and is extraordinarily comprehensive in its reach into the intimate details of a person’s life. The new multifactor analysis under Carpenterconsiders the intimacy, comprehensiveness, expense, retrospectivity and voluntariness of disclosure to third parties, in order to avoid ‘too permeating a police surveillance’ and ‘arbitrary police power.’ The biggest hole in Carpenter, however –– as Justice Kennedy rightly points out in his dissent –– is that private companies like AT&T still have unfettered access to all of our ostensibly private information. Indeed, they sell it to other businesses for billions.

Although it’s unclear how this groundbreaking development in Fourth Amendment law will play out in the lower courts, the CarpenterCourt changed the contours of the third-party doctrine, protecting the CLSI of all Americans from unwarranted government intrusion.

By Anna Iskikian, CLS ’20

The Supreme Court recently upheld Ohio’s process to remove registered voters from the federal voter roll, a process colloquially known as voter “purge” laws.[1]Respondents, consisting of two advocacy groups and an Ohio citizen, argued that Ohio’s process to remove voters violated the National Voter Registration Act (“NVRA”) and the Help Americans Vote Act (“HAVA.”)[2]The NVRA requires states to comply with certain procedures before removing the names of registered voters who have changed residences, such as providing the voter with prior notice.[3]Specifically, respondents contended that Ohio’s process violated the NVRA’s “failure-to-vote” clause.[4]The “failure-to-vote” clause prohibits the use of nonvoting as the grounds for removing registered voters from the voter rolls.[5]

Writing for the majority, Justice Alito concluded that respondents’ reading of  the “failure-to-vote” clause would “cannibalize subsection (d)” of § 20507.[6]Subsection (d) prohibits the removal of a voter’s name on change-of-residence grounds except in the following two situations: (A) the voter confirms in writing his or her change of residence, or (B) the voter fails to respond to a preaddressed, postage prepaid notice and fails to vote or to appear to vote for four years following the date of the notice.[7]Ohio’s Supplemental Process complies with the requirements in subsection (d)[8]. Justice Alito points to HAVA’s amendment of the “failure-to-vote” clause, which provides that “nothing in this shall be construed to prohibit a State from using the procedures described in subsections (c) and (d) to remove an individual from the official list of eligible voters if the individual” has failed to return the preaddressed, postage prepaid notice “and then has not voted . . . in two or more consecutive general elections for Federal office.”[9]HAVA also adds that “no registrant may be removed solelyby reason of a failure to vote.”[10]Accordingly, the majority concluded that because Ohio’s Supplemental Process does not rely on “nonvoting as the sole criterionfor removing a registrant,” it does not violate the NVRA and HAVA.[11]

According to the dissent, the majority’s interpretation renders the failure-to-vote clause superfluous.[12]Respondents and the dissent argued that because, under Ohio’s Supplemental Process, the failure to vote for two years triggers the sending of the preaddressed, postage prepaid notice, Ohio violates the NVRA’s prohibition against the use of nonvoting to remove registrants from the voter roll.[13]This difference in statutory interpretation resulted in the 5-4 decision. In a separate dissent, Justice Sotomayor criticized the majority opinion for “ignore[ing] the history of voter suppression against which the NVRA was enacted and uphold[ing] a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.”[14]Justice Sotomayor asserted that most states have maintained accurate voter roles without relying on nonvoting to initiate the removal process.[15]

In its brief as amicus for the Petitioner, the United States cited the prevention of “voter fraud” as one of the policy goals that Congress identified in enacting the NVRA.[16]Hustedis one of many examples of the Justice Department shifting its position from one administration to the next; under the Obama administration, the Justice Department argued that Ohio’s process was unlawful.[17]The Justice Department’s shift is consistent with the Trump Administration’s allegations of rampant voter fraud plaguing the 2016 elections. Specifically, President Trump has claimed that ineligible voters, namely, undocumented immigrants, have been casting votes unlawfully. Several reports and publications have published research to debunk these voter fraud allegations or to demonstrate that such claims greatly overstate the extent to which fraudulent voter activity has been occurring.[18]

Even taking these allegations at face value, it is difficult to see how a voter purge law like the Ohio process is effective in preventing or detecting voter fraud. For instance, ineligible voting, duplicate voting, and false registrations have been identified as the most common forms of voter fraud.[19]All of these involve an affirmative act, such as filling out a voter registration form with false information or voting twice. Affirmative acts go unnoticed in a purge scheme like the one at issue in Husted. Instead, Ohio’s removal process operates to remove inactive voters. If voter John Doe were to vote in an election once in Minnesota and then in Ohio, his behavior would go undetected and unprevented under Ohio’s Supplemental Process; in fact, his unlawful duplicate vote would actually shield him from the removal process, by the virtue of the very fact that he voted, albeit unlawfully. Similarly, Ohio’s removal scheme does nothing to filter out ineligible voters from voting. As far the removal process is concerned, those who vote, whether lawfully eligible or not, will not be subject to the notice and removal procedure. Whether one thinks Ohio’s purge scheme is generally good policy in its effort to maintain current and accurate voter rolls is one matter. But at their best, such purge laws prescribe an ineffective mechanism for preventing fraudulent voter activity.

[1]Husted v. A. Philip Randolph Institute, 138 S. Ct. 1833 (2018).

[2]Id. at 1841.

[3]See e.g., 52 U.S.C. § 20507(d)(2) (“[a] notice is described in this paragraph if it is a postage prepaid and pre-addressed return card, sent by forwardable mail, on which the registrant may state his or her current address”).

[4]Husted, 138 S. Ct. 1833, 1841.

[5]See52 U.S.C. § 20507(b)(2) (“Any state program . . . shall not result in the removal of the name of any person from the [list of registered voters] in an election for Federal office by reason of the person’s failure to vote”).

[6]Husted, 138 S. Ct. 1833, 1843.

[7]52 U.S.C. § 20507(d)(1).

[8]Husted, 138 S. Ct. 1833, 1842 (“Ohio’s Supplemental Process follows subsection (d) to the letter.”)

[9]Husted, 138 S. Ct. 1833, 1840 (quoting 52 U.S.C. § 20507(b)(2)).

[10]Id. (quoting 52 U.S.C. § 21083(a)(4)(A)) (emphasis added).

[11]Id. at 1842. (emphasis added).

[12]Id. at 1858-1859

[13]Id.

[14]Id. at 1865

[15]Id.

[16]Husted v. A. Philip Randolph Institute, 2017 WL 3485554 (U.S.), 3 (U.S.,2017)

[17]Brent Kendall & Jess Bravin, Trump’s Justice Department Takes U-Turns on Obama-Era Positions, Wall St. J. (Jan. 5, 2018), https://www.wsj.com/articles/trumps-justice-department-takes-u-turns-on-obama-era-positions-1515148200?mod=article_inline.

[18]Debunking the Voter Fraud Myth,Brennan Ctr. for Justice(Jan. 31, 2017), https://www.brennancenter.org/sites/default/files/analysis/Briefing_Memo_Debunking_Voter_Fraud_Myth.pdf.

[19]A Sampling of Election Fraud Causes from Across the Country, The Heritage Foundation, https://www.heritage.org/sites/default/files/voterfraud_download/VoterFraudCases_5.pdf. (last visited Nov. 7, 2018).

By Maximilian Auerbach, CLS ’20

In a recent immigration decision, Matter of A-B-,27 I&N Dec. 316 (A.G. 2018), Attorney General Jeff Sessions significantly limited the ability of victims of private violence to gain asylum in the United States. This decision will pose particular difficulty for those seeking asylum based on domestic or gang violence.

Under the Immigration and Nationality Act (INA), the Attorney General may grant asylum to aliens who have (1) endured persecution or hold a “well-founded fear of future persecution,” (2) “on account of ‘race, religion, nationality, membership in a particular social group, or political opinion.”[1]Proving membership in a particular social group involves meeting three further requirements: (1) that the alleged group contains members “shar[ing] a common immutable characteristic,” (2) that the alleged group is “defined with particularity,” and (3) that the alleged group is “socially distinct within the society in question.”[2]. An asylum seeker must then show that such membership represented the “central reason for their persecution.”[3]

Matter of A-R-C-G-,26 I&N Dec. 338 (BIA 2014) allowed domestic violence victims to premise asylum requests on their membership in a particular social group. By recognizing that “married women in Guatemala who are unable to leave their relationship” constitutes a particular social group,[4], A-R-C-G-set the stage for women in similar circumstances to seek asylum on analogous bases. Indeed, in Matter of A-B- (BIA Dec. 8, 2016),the Board of Immigration initially granted the respondent asylum based on her status as an “El Salvadoran wom[an]… unable to leave [her] domestic relationship where [she has] children in common.”[5]

The Attorney General rejected this decision and, in so doing, overturned A-R-C-G-.[6]Multiple doubts about the legitimacy of the social group identified in A-R-C-G- motivated his decision. First, Sessions argued that, since domestic violence produces the inability to leave partially defining that social group, the group’s only “narrowing characteristic” is the persecution itself.[7]Sessions, citing previous immigration and courts of appeals precedent, found that one must identify a particular social group existing independently of persecution, such that the A-R-C-G- group would not qualify.[8]Second, Sessions claimed that this group lacks the requisite social recognition and immutability to qualify for asylum.[9]Sessions contrasted Guatemalan women with “a particular tribe or clan:” while the latter group possesses a “highly recognizable, immutable characteristic,” there is little evidence, according to Sessions, that the former group shares such characteristics in Guatemala.[10]Lastly, Sessions questioned whether membership in this group would ever serve as the “central reason” for one’s persecution.[11]These concerns with the particular group led Sessions to the broad conclusion that victims of domestic or gang violence would rarely qualify for asylum.[12]

Going forward, this decision will significantly limit the ability of such victims to pursue asylum. This fact results from the significant leeway possessed by the Attorney General to construe the INA. Since it is up to the Attorney General to construe ambiguous portions of the INA, and courts of appeals have unanimously found the language “particular social group” ambiguous,[13]A-B-will control until a subsequent Attorney General changes Sessions’ interpretation. Furthermore, given the well-established ambiguity of the statute, courts will defer to this agency definition.[14]  As such, those fleeing private violence in their home countries will need to develop alternate paths to asylum.

[1]Matter of A-B-, 27 I&N Dec. at 318 (citing 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(a), (b)(i)).

[2]Id.

[3]Id.

[4]Matter of A-R-C-G-, 26 I&N Dec. 338, 389 (BIA 2014).

[5]Id.

[6]SeeA-B-, 27 I&N Dec. at 316.

[7]Id. at 335.

[8]Id.

[9]Id. at 336.

[10]Id.

[11]See A-B-, 27 I&N Dec. at 337

[12]SeeA-B-, 27 I&N Dec. at 320.

[13]See id. at 325-26, A-B-

[14]SeeNat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

By Elizabeth Parizh, CLS ’20

With the midterm elections coming up, you might be thinking about how you’re going to vote. You might be looking at which candidates you agree with most, what policies are most important to you, and the potential consequences from these decisions. But if you are a resident of Florida, as well as Iowa, Kentucky, or Virginia[1], and have ever been convicted of a felony, you cannot take part in any of this[2]. Even if the conviction is fifty years old and you completed your sentence thirty years ago, you likely are unable to vote. This is in Section 4 of Article VI of the Florida Constitution, written back in 1968[3].

The Eleventh Circuit upheld this law in Johnson v. Governor of Fla., finding it in violation of neither the Voting Rights Act[4]nor the Constitution.[5]Plaintiffs argued that the disenfranchisement provision was racially motivated and particularly impacted black men.[6]The court disagreed, holding that the statute was passed after African Americans had a right to vote and the provision was race-neutral[7].

You could try to go through the clemency board, comprised of the governor and his cabinet, to get your rights restored, but you would have to wait at least five years to even apply and there are currently thousands of people waiting in the backlog[8]. A federal judge ruled this process unconstitutional in Hand v. Scott, but the state is appealing[9], with a stay granted in the meantime[10]. In the case, the court found the process violated the First and Fourteenth Amendments of the U.S. Constitution because it was subjective, arbitrary, and discriminatory[11]. This violated the First Amendment by violating felons’ right to free association and expression[12], and the Fourteenth because courts have historically avoided such acts of grace[13]. However, the judge upheld voter disenfranchisement itself, finding issue only with how Florida went about restoring it[14].

Amendment 4 is attempting to change the entire system. It was intended to “automatically restore the right to vote for people with prior felony convictions, except those convicted of murder or a felony sexual offense, upon completion of their sentences.”[15]The sentence includes “prison, parole, and probation.”[16]If this proposal passes, it would restore voting rights to almost 1.5 million Floridians[17].

The movement to get the amendment on the ballot has been pushed in large part by grassroots organizations. The Florida Rights Restoration got over a million signatures[18]and 5.5 million dollars[19]. It needs 60% approval rating to pass[20], which some are more optimistic of reaching than others.

Proponents argue that Florida is one of only four states with such voter disenfranchisement and the sentence itself is meant to provide adequate punishment[21]. Further, allowing ex-felons to vote would help them become productive members of society[22], which would allow them to “contribute $365 million to Florida’s economy.” [23]As Angel Sanchez, a disenfranchised voter currently in law school and pushing this bill, indicated, “We really believe in redemption and second chances, and we believe in Florida, once a debt is paid, it’s paid in full.”[24]At the same time, some oppose the proposal, claiming the Legislature should be the one to address the issue and grant voting rights to those who deserve it[25]. Still others are opposed because it excludes those convicted of murder or sex offenses[26]. The argument is that a murder or sex offense decades previously should not impact voting rights, especially considering those convicted of voter fraud or similar offenses will be able to regain their right.[27]

To learn more about this movement, visit secondchancesfl.org[28].

[1]Amendment 4: Voting Rights Restoration for Felons Initiative, Florida Association of Counties,

[2]https://ballotpedia.org/Florida_Amendment_4,_Voting_Rights_Restoration_for_Felons_Initiative_(2018).

[3]Id.

[4]Johnson v. Governor of Fla., 405 F.3d 1214, 1234 (11th Cir. 2005).

[5]Id. at 1226-27.

[6]Id. at 1217.

[7]Id.at 1219.

[8]Layron Livingston, Passing of Amendment 4 could increase number of Florida voters by nearly 1.5 million, Local10, https://www.local10.com/news/elections/passing-of-amendment-4-could-increase-number-of-florida-voters-by-nearly-15-million.

[9]Id.

[10]Steve Bousquet, A long, hot summer of building support to grant felons the right to vote, Tampa Bay Times, https://www.tampabay.com/florida-politics/buzz/2018/07/19/a-long-hot-summer-of-building-support-to-grant-felons-the-right-to-vote/.

[11]Hand v. Scott, 285 F. Supp. 3d 1289, 1300 (N.D. Fla. 2018).

[12]Id. at 1295-96.

[13]Id. at 1307.

[14]Id. at 1300.

[15]Amendment 4, supra note 1.

[16]Id.

[17]Livingston, supra note 8.

[18]Id.

[19]Bousquet,supra note 10.

[20]Id.

[21]Ginny Beagan, Vote yes or no for Amendment 4? Here’s what 6 Florida newspapers recommend, Florida TOday,

[22]Id.

[23]Bousquet,supra note 10.

[24]Livingston, supra note 8.

[25]Beagan,supra note 21.

[26]Lynn Hatter, Critic Of Voting Restoration Initiative Says Amendment 4 Pits Felons Against Each Other, WLRN, http://www.wlrn.org/post/critic-voting-restoration-initiative-says-amendment-4-pits-felons-against-each-other.

[27]Id.

[28]Second Chances, https://secondchancesfl.org/.

By Natalie Dugan, CLS ’20

A civil-rights law suit filed against Harvard in 2014 went to trial in a federal district court in Boston last week. The plaintiff, a group called Student for Fair Admissions, alleges that Harvard’s undergraduate program discriminates against Asian-Americans.[1]A report from Harvard’s own Office of Institutional Research reported that Asian-Americans were accepted at a lower rate than whites, despite scoring higher on test scores, and being rated higher by admissions officers in extracurriculars.[2]While the plaintiff believes this trend is explained by discrimination, Harvard argues that it’s not.[3]Moreover, Harvard, and several other elite universities, contend that if the admissions process must proceed in a race-neutral fashion, diverse environments will not be possible.[4]

The Supreme Court has tackled the issue of affirmative action in elite universities a number of times, and set the relevant standard in two landmark cases: Grutter v. Bollinger and Gratz v. Bollinger. In the former case, a white student alleged that he was rejected from the University of Michigan’s Law program due to his race.[5]The Court held that a narrowly tailored affirmative action system is Constitutional if it relates to what the Court saw as a legitimate and compelling interest in increasing the diversity of the student body.[6]Moreover, the Court explained that a narrowly tailored system is one that does not plainly rely on racial quotas, but is rather a holistic evaluation of the many factors that might impact an application (personal statement, extracurriculars, grades, etc).[7]In Gratz v. Bollinger, the Court similarly held that formulaic affirmative action schemes violate equal protection, and that individualized consideration must be afforded to all candidates.[8]

In opening statements last week, plaintiff’s attorney Adam Mortara argued that Asian Americans outscore white applicants in every single category, except for the “subjective personal rating”.[9]And in this way, the plaintiff aims to distinguish Harvard’s practices from that of Supreme Court sanctioned affirmative action, and classify it instead as racial discrimination.[10]Harvard, however, emphasized that race never plays a negative role in the admissions process, but can only be positive.[11]Notably, on the plaintiff’s side is attorney Edward Blum, a conservative lawyer with a long track record of challenging affirmative action.[12]Some believe that this case is poised for the Supreme Court – and with Judge Kavanaugh now presiding, it’s possible the standard for affirmative action will change significantly.[13]

[1]Jeannie Suk Gersen, Anti-Asian Bias, Not Affirmative Action, Is on Trial in the Harvard Case, The New Yorker (Oct. 11, 2018), https://www.newyorker.com/news/our-columnists/anti-asian-bias-not-affirmative-action-is-on-trial-in-the-harvard-case.

[2]Id.

[3]Id.

[4]Id.

[5]Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325 (2003).

[6]Id.

[7]Id.

[8]Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411 (2003).

[9]Adam Harris, What the Harvard Trial Is Really About, The Atlantic(Oct. 15, 2018), https://www.theatlantic.com/education/archive/2018/10/harvard-really-about-affirmative-action/573064/.

[10]Jeannie Suk Gersen, Anti-Asian Bias, Not Affirmative Action, Is on Trial in the Harvard Case, The New Yorker (Oct. 11, 2018), https://www.newyorker.com/news/our-columnists/anti-asian-bias-not-affirmative-action-is-on-trial-in-the-harvard-case.

[11]Adam Harris, What the Harvard Trial Is Really About, The Atlantic(Oct. 15, 2018), https://www.theatlantic.com/education/archive/2018/10/harvard-really-about-affirmative-action/573064/.

[12]Jeannie Suk Gersen, Anti-Asian Bias, Not Affirmative Action, Is on Trial in the Harvard Case, The New Yorker (Oct. 11, 2018), https://www.newyorker.com/news/our-columnists/anti-asian-bias-not-affirmative-action-is-on-trial-in-the-harvard-case.

[13]Adam Harris, The Harvard Case Is About the Future of Affirmative Action, The Atlantic(Oct. 15, 2018), https://www.theatlantic.com/education/archive/2018/10/harvards-affirmative-action-trial-gets-underway/572989/.

By Aryeh Mellman, CLS ’20

In a case that has important implications for the future of the gig economy, the 9^thCircuit ruled in O’Connor v. Uber Technologies that Uber drivers who were suing to be classified as employees rather than independent contractors could not sue as a class and would have to litigate their claims individually.[1]

The reason for the suit boils down to the differences between employees and independent contractors. Generally, contractors have more flexibility (drivers can work for both Uber and Lyft at the same time and can set their own hours), but employees are legally entitled to a broader set of benefits, including health insurance. In this case, contractors working for Uber also had to sign an arbitration agreement waiving their right to sue Uber as a class, though the agreement did contain an opt-out provision. Notably, the court had previously held in Mohamed v. Uber Technologies, Inc.[2]because it contained an opt-out provision, the arbitration agreement was not unconscionable and gave drivers a real opportunity to exercise that option if they so chose.

The court rejected both of plaintiffs’ lines of reasoning claiming that the arbitration agreements were unenforceable. First, it disposed of plaintiffs’ argument that “the lead plaintiffs in O’Connor had constructively opted out of arbitration on behalf of the entire class” on the grounds that plaintiffs’ sole authority for that proposition rested on a state supreme court case that did not reach federal law.[3]Plaintiffs’ second argument was that arbitration agreements that contain class action waivers, as Uber’s arbitration agreements did, are illegal under the National Labor Relations Act. However, plaintiffs had to withdraw this argument as their position was squarely rejected in Epic Systems Corp. v. Lewis, decided as O’Connor was ongoing.[4]

The class of drivers suing Uber included some plaintiffs who agreed to the arbitration provision, thus waiving their right to participate in a class action. Since the court held the arbitration agreements to be enforceable, they deemed those plaintiffs improperly part of the class and reversed the certification orders.

The decision is a clear victory for Uber, which had at one point agreed to settle with the drivers for $100 million.[5]Conversely, plaintiffs have two unattractive options remaining. They can appeal for an en banc hearing, in which case they would have to win a majority of 9^th Circuit judges’ votes just to hear the case and then would have to win on the merits. Alternatively, Uber drivers can litigate their cases individually in arbitration, which plaintiffs’ lawyer has said is already occurring.[6]Of course, litigating thousands of cases individually consumes far more time and resources than litigating as a class. It may also lead to inconsistent judgments, especially since arbitration proceedings are not bound by precedent. Barring a judicial reversal though, that seems to be the only option left available to Uber drivers unhappy with their employment status.

[1]O’Connor v. Uber Technologies Inc., 2018 WL 4568553.

[2]Mohamed v. Uber Technologies Inc., 848 F.3d 1201 (9^thCir. 2016).

[3]O’Connor, 2018 WL 4568553, 14.

[4]Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018).

[5]Andrew J. Hawkins, Uber Scores a Big Win in Legal Fight to Keep Drivers as Independent Contractors, The Verge (September 25, 2018). https://www.theverge.com/2018/9/25/17901284/uber-drivers-independent-contractors-vs-employees-legal-fight.

[6]Jonathan Stempel,No Class Action for Unhappy Uber Drivers: U.S. Appeals Court, Reuters (September 25, 2018) https://www.reuters.com/article/us-uber-lawsuits/uber-can-force-drivers-into-arbitration-u-s-appeals-court-idUSKCN1M526F.

By Edmund Costikyan, CLS ’20

If you’re a true crime podcast fan, you may have heard the name Joey Watkins. Watkins is one of a small but growing group of defendants who has had his case reinvestigated and told to an audience of millions of podcast subscribers. Serial, a podcast known for its deeply affecting series on the case of Adnan Syed, initially popularized this phenomenon. Watkins, who, like Syed, has maintained his claim of innocence throughout nearly two decades of incarceration, is represented by the Georgia Innocence Project, and had his story told on the true crime podcast Undisclosed, which is dedicated to investigating potential wrongful convictions. However, it is not his strong claim of actual innocence which makes a recent decision by the Georgia Superior Court of Walker County in his case problematic. Rather, this decision raises a long-standing justice system concern — the protection of jurors once they have been discharged from their duty from “[v]exatious or harassing investigations[.]” Model Code of Prof’l Responsibility EC 7-30 (Am. Bar Ass’n 1983).

In Watkins v. Ballinger, Watkin’s habeas petition to the Superior Court, one of the grounds upon which Watkins challenges his incarceration is that “[j]uror misconduct resulted in a violation of [his] rights under the Fifth, Sixth, and 14th Amendments… and Article I, Section I, Paragraphs I and XIV or the Georgia Constitution…” Watkins Application for Writ of Habeas at 5 Filed Jan 18 2017.  The alleged juror misconduct, discovered fifteen years after Watkins’ conviction during a 2016 interview with Undisclosed reporter and attorney Susan Simpson, was that one juror, during deliberations, had taken it upon herself to do a drive test of an alleged aspect of the charged offense, and, as a result of that independent drive test, changed her vote from not guilty to guilty.  Watkins Application for Writ of Habeas Corpus, Juror Aff. 5 Filed Jan 18 2017. This is a violation of the directions the jury was given by the trial court, which instructed the jurors that they “ha[d] to base [their] decision in any trial like this on what [they] hear[d] in the courtroom from the witness stand and [they] c[ouldn’t] go investigating anything on [their] own.” Addendum to Part II of Watkins Application for Writ of Habeas at 2, quoting Trial Transcript at 411-412. As such, Watkins claim was that this violated his constitutional rights “to be present at all critical stages of his trial and to confront the witnesses against him.” Watkins Application for Writ of Habeas at 5 Filed Jan 18 2017.

The court’s Judge Don W. Thompson declined to address the merits of the argument, instead dismissing the petition for habeas corpus relief as untimely on the grounds that Watkins, “with the exercise of due diligence, could have spoken with this juror once his trial was over in 2001 to determine whether any juror misconduct had occurred.” Order Dismissing Petition as Untimely and Successive at 5 Filed Jul 19 2018. He determined that the statute allowing Watkins to petition for habeas relief contains a one-year statute of limitations which starts to run “when a person knows or through due diligence could discover the vital facts, regardless of when their legal significance is discovered.” Id. at 4, citing Cole v. Warden, 768 F.3d 1150 (11th Cir. 2014), cert,denied, 135 S.Ct. 1905 (2015). See also O.C.G.A. § 9-14-42(c); 28 U.S.C. § 2244(d)(1)(D).

This has problematic implications for defendants and their attorneys in Georgia, but perhaps even more for the jurors themselves. If any potential juror misconduct must be discovered and brought to the attention of the court within one year in order to be considered timely, this means that every defendant who loses at trial has a pressing incentive to immediately and exhaustively interview every juror about all aspects of their deliberations in the hope of discovering potentially actionable juror misconduct. While both the ABA Model Code of Professional Responsibility and the Georgia Rules of Professional Conduct state that a lawyer may communicate with jurors after a trial, these communications must be limited and are often regarded with skepticism. Model Code of Prof’l Responsibility EC 7-29  (Am. Bar Ass’n 1983). The Georgia Rules of Professional Conduct Rule 3.5 provides, in pertinent part, that “[A] lawyer shall not, without regard to whether the lawyer represents a client in the matter:

3. communicate with a juror or prospective juror after discharge of the jury if:

1. 1. the communication is prohibited by law or court order; or
   2. the juror has made known to the lawyer a desire not to communicate; or
   3. the communication involves misrepresentation, coercion, duress or harassment.”

Given these concerns, does it make sense for the Georgia courts to require that an attorney, in order to have acted in due diligence, must contact all the jurors who had decided her client’s verdict and interview them about what transpired in the jury room within such a short period after the trial, and ensure that she gets the information then or else relinquish her client’s chance to appeal on the grounds of any juror misconduct? Doesn’t such a requirement implicate concerns that jurors will feel coerced, harassed, or under duress by the interviews the Walker County Superior Court now makes mandatory in this decision’s definition of due diligence? Hopefully, Watkins will be permitted to appeal this ruling to the Georgia Supreme Court, and we will see how it responds to these questions.

If you’d like to learn more about Watkins’s case, you can listen to the reinvestigation and in-depth discussion of his case in season 2 of the incredible true crime podcastUndisclosed at http://undisclosed-podcast.com/episodes/season-2/, or at the Georgia Innocence Project’s active cases page at https://www.georgiainnocenceproject.org/active-cases-2/.

By Brandyn Arnold, CLS ’20

The First Circuit recently addressed the issue of whether people can be bound by an arbitration agreement of which they were not made aware. An advocacy group for the blind filed a lawsuit against the Container Store alleging that the company’s use of visual, touch screen point of sale devices constituted discrimination in violation of federal and state law. The Container Store sought to stay the proceedings, arguing that the customers agreed to arbitrate any disputes when they signed up for the company’s loyalty program. The First Circuit, with Justice David Souter sitting by designation, affirmed the district court’s decision to deny compelling arbitaration, finding that the customers never actually agreed to the arbitration clause. National Federation of the Blind v. The Container Store, Inc., No. 16-2112, 2018 WL 4378174 (1st Cir. Sept. 14, 2018).

The court begins its analysis by focusing on whether the issue of the arbitrations clause’s enforceability itself should have been resolved by an arbitrator. While the validity of an agreement as a whole should be determined by an arbitrator, a challenge to the formation of the arbitration clause can properly be considered by a court. Considering the challenge to the arbitration agreement to be based upon the contract principles of offer and acceptance, the court considers the issue to be whether there was the formation of a contract to arbitrate. Therefore, the court holds that the district court was an appropriate forum to resolve the issue of whether the customers agreed to arbitrate.

The court then examines whether the plaintiffs had adequate notice of the arbitration agreement to accept it. The court notes that no store clerk ever informed blind customers who signed up for the loyalty program that they were being subjected to an arbitration agreement. Nevertheless, the Container Store maintained that the customers actually had constructive notice of the clause’s existence by pointing out that the inability to read is not a defense to contract formation. However, the court found the cases relied on by the Container Store to be distinguishable because they involved situations in which the formation of legal rights and duties would be expected such as signing documents initiating loans or employment. Since the in-store customers had no reason to think that legal terms and conditions applied to the loyalty program, there was no presumption that the customers knew what these terms and conditions were. Accordingly, the customers had no actual or constructive knowledge of the arbitration clause’s existence and thus could not have agreed to be bound by its terms.

The case serves as a cautionary tale for both businesses and consumers alike. Businesses that want to avoid the costs of litigation by resolving disputes through arbitration should ensure that all customers are made fully aware of any arbitration agreement and thus have the capability of accepting it. In addition, a customer made aware of an arbitration agreement should fully consider the nature of the agreement and its ability to restrict the forum in which the customer’s grievances may be heard.

By Dani Parker, CLS ’20

On September 27, 2018, Dr. Christine Blasey Ford testified in front of the Senate Judiciary Committee that she had been sexually assaulted at a high-school party by then D.C. Circuit Judge and Supreme Court nominee, Brett Kavanaugh.[1]Dr. Ford was initially hesitant to testify front of the committee without a preceding FBI investigation, but she agreed to participate in a public hearing after Senate Republicans insisted upon continuing with the nominating process without her testimony.[2]This is not the first time assault allegations have surfaced amid Supreme Court nominations. In October 1991, Anita Hill testified in front of the Senate Judiciary Committee to sexual harassment by then Supreme Court Nominee Clarence Thomas.[3]

Allegations by Ms. Hill and Dr. Ford and the corresponding congressional hearings highlight the inadequacy of Senate procedures to appropriately account for sexual assault allegations that arise during the Supreme Court confirmation process. In this high-stakes context, such inadequate process may result in the appointment of individuals who are unsuited to sit on the nation’s highest court. As such, the Senate should employ research-based procedures for addressing sexual assault allegations that arise during the Supreme Court nomination process.

The Problem

Though its role is mostly customary, the modern Senate Judiciary Committee conducts pre-hearing investigations, holds public hearings, and makes a recommendation to the full Senate body.[4]While it normally conducts an extensive background investigation, there are no set guidelines for addressing the results of these efforts.[5]Typically, the Committee holds public hearings to discuss its investigative findings, but this practice results from custom and not rule.[6]Additionally, there are no rules governing what topics public hearings should concern.[7]Though politically unlikely, the Senate could complete the nomination process without formally considering or acknowledging sexual assault allegations.[8]

While the Judiciary Committee did choose to address such allegations during both the Kavanaugh and Thomas proceedings, the resulting publically televised hearings provided a hostile forum for serious consideration of the alleged victims’ claims. According to trauma research, neurobiological phenomena, “can affect the survivor’s ability to give a coherent, consistent account of their experiences.”[9]This is especially true when a significant amount of time exists between the alleged events and the victim’s testimony.[10]Both Dr. Ford and Ms. Hill came forward several years after their alleged assaults. Both sets of hearings pitted the testimony of the accuser against the word of the nominee and did not require additional investigation or testimony[11]. In both cases, televised hearings focused mainly on the words of the opposing parties and lacked an extensive standard for investigation. These methods place a scientifically inappropriate burden on the alleged victims’ memory, encouraging further political polarization instead of legitimate truth-finding.

Recommendation

To ensure comprehensive evaluation of Supreme Court nominees, the Senate Judiciary Committee should establish prescribed policies for addressing sexual assault nominations. In order to best facilitate truth-telling, these guidelines should be trauma-informed and should mandate research-based investigations. These requirements would facilitate appropriate due diligence on the part of the President and ensure that Senators would thoroughly consider the allegations before voting. While some may view this as too invasive, society should expect nothing less for the nomination process to our nation’s highest court.

[1]Scott Detrow and Danielle Kurtzleben, Kavanaugh and Christine Blasey Ford Testify Before Senate Judiciary Committee, N.P.R. All Things Considered (September 27, 2018),

https://www.npr.org/2018/09/27/652366140/kavanaugh-and-christine-blasey-ford-testify-before-senate-judiciary-committee

[2]Peter Baker et al., Christine Blasey Ford Wants F.B.I. to Investigate Kavanaugh Before She Testifies, N.Y. Times (September 18, 2018), https://nyti.ms/2NmMeZR.

[3]Elise Viebeck, Here’s what happened when Anita Hill testified against Clarence Thomas in 1991, Chicago Tribune (September 27, 2018), http://www.chicagotribune.com/news/nationworld/politics/ct-anita-hill-clarence-thomas-20180927-story.html.

[4]Barry J. McMillion, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, Congressional Research Service Report (August 14, 2018), https://fas.org/sgp/crs/misc/R44236.pdf.

[5]Id.

[6]Id.

[7]Id.

[8]Id.

[9]Fiona Mason, Psychological Consequences of Sexual Assault, (2012), https://ac.els-cdn.com/S152169341200137X/1-s2.0-S152169341200137X-main.pdf?_tid=d4001a67-4cc1-4296-ac04-0d86dad97eea&acdnat=1538178437_a15324cf8da4dceb703153bbe2448280.

[10]Id.

[11]In fact, Anita Hill and Clarence Thomas’ testimonies popularized the phrase “he said, she said” in the context of “weighing the word of one defendant against the word of one plaintiff.” William Safire, On Language; He-Said, She Said, (April 12, 1998), https://www.nytimes.com/1998/04/12/magazine/on-language-he-said-she-said.html