Yearly Archives: 2020

Maxwell Potluri, CLS ’22

For the second time in two years, the Supreme Court is the focus of public attention regarding a contentious confirmation hearing. In 2018, Justice Brett Kavanaugh’s confirmation highlighted the increasingly partisan battle over the nation’s highest court. Now, the Senate has confirmed Judge Amy Coney Barrett to the seat vacated by Justice Ruth Bader Ginsburg, which promises to tip control of the Court decisively in favor of its conservative wing. Judge Barrett’s nomination was particularly contentious because it came just before the 2020 Presidential Election. Her confirmation raises the question of how Democrats, should they win power, will attempt to deal with a more conservative Supreme Court.

Proposals for Supreme Court reform are not new — indeed, one of the more radical proposals is for Democrats to expand or “pack” the Court, something President Roosevelt attempted and failed to do in the 1930s. However, the Court’s size is not fixed: in the 1800s, its membership grew and shrank before reaching its current composition of nine justices.[1] Democratic president-elect Joe Biden has so far remained elusive on whether he would be willing to pack the Court. Despite calls from the progressive left, Biden has only gone so far as to propose a bipartisan commission of scholars to study possible judicial reform.[2] Liberal proponents of court expansion argue that Republicans are already effectively packing the courts, citing Senator McConnell’s tactics blocking President Obama’s nominations (including Judge Merrick Garland), and arguing that it would be “political suicide” for Democrats not to respond in turn.[3]

However, there are grave political implications inherent in any attempt to expand the Court. Roosevelt’s court-packing debacle, a response to the Court striking down New Deal legislation, was a political power play cloaked as an institutional reform.[4] Today, a court-packing scheme would be a similar move. It could come at the cost of increased partisanship and major political upheaval.[5] And while an expanded court might satisfy the immediate policy goals of liberals, the Court’s decisions on the most contentious issues would have less authority, and the consequences for the rule of law would be unpredictable.[6]

Legal scholars have suggested many Supreme Court reforms intended to address some of the perceived underlying issues with the Court.[7] One proposal is to replace life tenure with a system of staggered, non-renewable eighteen-year terms; arguably, this system could solve or mitigate three major problems: strategic retirements, incentives for presidents to appoint younger nominees, and the randomness of Supreme Court appointment distributions among presidents.[8] Whereas court-packing schemes inherently seek the advantage of one political party, proponents of the term limit system argue that it would be “party and ideology neutral” over time.[9] Such a change could reduce the political desires for court-packing, and would address the Court’s oft-criticized life tenure appointments.[10] However, term limits are certainly constitutionally suspect, as Article III makes no mention of them.[11] They also run contrary to the thought of at least some of the founders, who emphasized that the necessary constraint on the independent judiciary should be the requirement of “good behavior.”[12]

To implement such a reform would likely require a Constitutional amendment rather than a simple statute — a significant barrier to practical implementation.[13] An alternative, typically dismissed but worthy of consideration, is that the Court itself adopt a self-governing norm that justices retire after eighteen years of service, either through its own internal traditions or through the nomination procedure.

Since Supreme Court term limits may be unconstitutional if created by statute, and because the passage of a Constitutional amendment creating term limits is unlikely, perhaps the best chance at reforming the Court (without expanding its membership) is the development of such norms. If the only alternative begins to look like the effective subjugation of the Court to legislative and executive will via court-packing, the justices may choose instead to preserve their institution’s independence in an atmosphere of growing political polarization, scrutiny, and public pressure by creating an internal, self-governing norm for principled retirement. While it is true that this approach would likely have a major collective action problem initially, it could work. For instance, the Second Circuit has established a norm that all judges take senior status on the first day that they are eligible.[14] Congress could further encourage the development of this norm on the Supreme Court by enticing justices to retire at a certain time through the offer of more generous retirement benefits to the justices who desire once they have served eighteen years.[15]

Such a development of retirement norms may be impossible, however, for a Court and a country so accustomed to life tenure on the high court that the retirement of Justice David Souter “at the relatively youthful age of 69” came as a surprise.[16] For now, it remains to be seen whether Amy Coney Barrett’s confirmation will serve as a catalyst for a greater partisan fight over the Court’s future in the upcoming presidential term.

[1] See Kyle Sammin, It’s Definitely Time To Pack The Supreme Court, But For Entirely Practical Reasons, Federalist, (July 13, 2018), https://thefederalist.com/2018/07/13/definitely-time-pack-supreme-court-entirely-practical-reasons/.

[2] See Charlie Savage & Katie Glueck, Biden Punts on Expanding the Supreme Court, Calling for a Panel to Study Changes, N. Y. Times, (Oct. 22, 2020), https://www.nytimes.com/2020/10/22/us/politics/biden-supreme-court-packing.html.

[3] Michael Klarman, Why Democrats Should Pack the Supreme Court, Take Care, (Oct. 15, 2018), https://takecareblog.com/blog/why-democrats-should-pack-the-supreme-court.

[4] See Bob Bauer, Don’t Pack the Courts, Atlantic, (July 6, 2018), https://www.theatlantic.com/ideas/archive/2018/07/dont-pack-the-courts/564479/.

[5] See Ryan D. Doerfler & Samuel Moyn, Reform the Court, but Don’t Pack It, Atlantic, (Aug. 8, 2020), https://www.theatlantic.com/ideas/archive/2020/08/reform-the-court-but-dont-pack-it/614986/.

[6] See Bauer, supra note 4.

[7] See generally Roger C. Cramton & Paul D. Carrington, The Supreme Court Renewal Act: A Return to Basic Principles, in Reforming the Court: Term Limits for Supreme Court Justices 467 (Roger C. Cramton & Paul D. Carrington eds., 2006).

[8] See James E. DiTullio & John B. Schochet, Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms, 90 Va. L. Rev. 1093, 1096–97 (2004).

[9] Id. at 1144.

[10] See Gregg Easterbrook, The Case for Supreme Court Term Limits, 26 Intl. Soc’y Barristers Q. 373, 374 (1991) (arguing that the only comparable institution of power existing in America where individuals become “vested in the gray and unremovable” is the Catholic Church).

[11] See U.S. Const. art. III, § 1.

[12] The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[13] See Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L. J. 148, 173 (2019).

[14] See Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 Harv. J. L. & Pub. Pol’y 769, 874–75 (2006).

[15] See Kevin T. McGuire, Are the Justices Serving Too Long – An Assessment of Tenure on the U.S. Supreme Court, 89 Judicature 8, 15 (2005).

[16] Russell Berman, No Other Western Democracy Allows This, Atlantic, (Sept. 25, 2020), https://www.theatlantic.com/politics/archive/2020/09/supreme-court-retirement-age/616458/.

Gage Hodgen, CLS ’22

The opportunity for the criminally accused to contest his or her guilt is fundamental to the criminal justice system.  Despite the centrality of the constitutional right to a trial at which the government must prove criminal charges beyond a reasonable doubt, however, the federal Sentencing Guidelines effectively punish defendants who avail themselves of their right to trial and contest the factual elements of their guilt.[1]  This incentive to admit guilt in order to obtain a more lenient sentence may be troubling in the typical case for punishing defendants who do not submit meekly to government prosecution.  In the context of defendants who contest their guilt by asserting an entrapment defense, however, the concept of acceptance of responsibility itself is particularly elusive, as demonstrated by the Third Circuit’s recent opinion in United States v. Jackson, 2020 WL 5681690 (3rd Cir. Sept. 24, 2020), which raises serious questions about how courts should treat such a defense when determining moral culpability of the sort considered in the Sentencing Guidelines § 3E1.1(A).

The facts of Jackson, like the facts of many cases in which a defendant raises an entrapment defense,[2] do not inspire a great deal of sympathy for the accused.  Jackson was arrested for selling several ounces of methamphetamine to a confidential informant for the police in York County, Pennsylvania.[3]  The evidence showed that Jackson did not take a great deal of convincing to sell the drugs to the police informant,[4] which led the Third Circuit on review to conclude that Jackson had not satisfied his burden of showing that the government induced him to commit the crime.[5]

The more conceptually troubling aspect of Jackson is the Third Circuit’s conclusion that “[o]rdinarily a claim of entrapment seems to be the antithesis of the acceptance of responsibility”[6] and therefore that a defendant who raises an entrapment defense should be precluded from receiving a reduction of the offense level of his or her crime under § 3E1.1(A) of the Sentencing Guidelines even if he or she professes to accept responsibility for it.  The Third Circuit’s parsing of the entrapment defense as the defendant rejecting personal moral responsibility is in some tension with the nature of an entrapment defense and is not the only rational way to frame the defense.

As an affirmative defense, the entrapment defense requires that the defendant admit to committing the crime alleged (i.e., take responsibility for his or her actions) and plead a justification of sorts that the government wholly induced the otherwise law-abiding defendant to commit the crime.  A defendant could reasonably argue that the entrapment defense is at its core an admission by the defendant that the crime he or she committed was wrong coupled with a claim that the defendant committed the crime due to extraordinary pressure from the government and against his or her better judgment.  The Jackson Court’s conclusory treatment of the entrapment defense as necessarily a rejection of personal responsibility that precludes an offense level reduction under § 3E1.1(A) misses this key point; a court could just as reasonably understand the entrapment defense as the acceptance of responsibility for the crime joined with an appeal to compassion based on the extreme government temptation that induced the defendant to commit the crime.

Defendants already face an uphill battle when arguing entrapment. The vast majority of entrapment defenses fail either because of the high standard for what constitutes government inducement[7] or the low factual burden to justify a jury finding that a defendant was predisposed to commit the crime at issue.[8]  By stating that in most cases a defendant who even asserts an entrapment defense should receive a lengthier sentence under the Sentencing Guidelines because of a failure to accept moral responsibility, the Third Circuit in Jackson even further disincentivizes defendants from raising an entrapment defense and undercuts defendants’ ability to fully defend themselves without fear of retribution from the courts.

[1] U.S. Sent’g Guidelines Manual § 3E1.1(A) (U.S. Sent’g Comm’n 2018) provides that the offense level of a crime will be decreased by two “if the defendant clearly demonstrates acceptance of responsibility for his offense.”  The Guidelines explain that this adjustment is “not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.”  Id. at n.2.

[2] Even when entrapment defenses are successful, the facts of the defendants’ crimes are often off-putting because such defenses arise from police sting operations targeting drug crimes, terrorism, or sex crimes.  See, e.g., Jacobson v. United States, 503 U.S. 540 (1992) (finding entrapment of a defendant who ordered child pornography because of a police sting operation).

[3] United States v. Jackson, 2018 WL 4469694, at *1–3 (M.D. Penn. Sept. 18, 2018), aff’d, 2020 WL 5681690 (3rd Cir. Sept. 24, 2020).

[4] Id.

[5] Jackson, 2020 WL 5681690 at *2.  A successful entrapment defense requires that a defendant prove two elements:  government inducement of the crime and lack of predisposition on the part of the defendant to engage in the criminal conduct.  Id.

[6] Id.

[7] See, e.g., United States v. Dennis, 826 F.3d 683, 690 (3rd Cir. 2016) (“A mere solicitation or request by the government to participate in a criminal activity, without more, is not inducement.  Likewise, merely opening an opportunity for a crime is insufficient. Rather, the defendant must show that law enforcement engaged in conduct that takes the form of persuasion, fraudulent representation, threats, coercive tactics, harassment, promises of reward or pleas based on need, sympathy or friendship.”) (internal quotations marks and citations omitted).

[8] See, e.g., United States v. Bolatete, 2020 WL 5784153, at *10–11 (11th Cir. Sept. 29, 2020) (finding that a jury’s finding of predisposition to buying an unregistered silencer was reasonably supported by the evidence despite the defendant’s expressed disinterest in purchasing such a silencer and the police officer’s conclusion that the defendant had “no desire to own a silencer.”)

Lauren Stewart, CLS ’22

During the Coronavirus pandemic, states wielded unprecedented emergency powers. As a result, courts served as arbiters when state power clashed with individual rights across the country. One of the most convoluted court battles was waged in Texas. In one month, the legal status of abortion in Texas changed nine times.[1]

On March 22, 2020, Governor Abbott issued executive order GA-09 postponing non-essential surgeries and procedures until April 21.[2] The next day the Texas attorney general published a press release interpreting GA-09 which explicitly stated abortion providers must stop all non-emergency abortions for that period.[3] The Texas Medical Board immediately passed a corresponding Emergency Rule.[4] Purportedly to conserve Personal Protective Equipment (PPE) and preserve hospital capacity during the crisis, .[5] For some who would be past the gestational threshold for legal termination by April 21, abortion would be wholly inaccessible.

Several abortion facilities immediately filed for a Temporary Restraining Order (TRO).[6] The district court ruled that while GA-09 was within the governor’s authority, the press release and Emergency Rule was an abortion ban that violated Supreme Court precedent.[7] The court concluded that the ban’s limited potential reduction of PPE was outweighed by the harm imposed on the right to a pre-viability abortion. On the balance, eliminating this time-sensitive medical procedure did not serve the public interest.[8]

The State appealed and the Fifth Circuit employed the writ of mandamus— a “drastic and extraordinary remed[y]”[9]— to vacate the TRO. The Fifth Circuit substituted the rights-specific test and standard of review developed by Roe v. Wade[10] and its progeny and instead applied their interpretation of the 115-year-old case Jacobson v. Massachusetts.[11] In the Fifth Circuit’s view, Jacobson, a case concerning a $5 fine for a man who refused to get vaccinated, dictated a mandatory universal standard of deferential, rational basis-like review during a public health crisis.[12]

The sole dissenter emphatically criticized the majority in both substance and procedure. The dissent argued that Jacobson is not only clearly distinguishable but also Jacobson clearly states in emergency situations that courts should invalidate laws that “went beyond the necessity of the case and, under the guise of exerting a police power… violated rights secured by the Constitution.”[13] Additionally the dissent criticized the majority’s reliance on the writ when the lower court rightly applied 50 years of Supreme Court abortion precedent.[14]

In a second TRO, the district court applied both Jacobson and Planned Parenthood v. Casey,[15] and allowed resumption of medication abortions and procedural abortions for patients who would be legally barred from having an abortion after April 21.[16] The two-one Fifth Circuit panel once again employed the writ of mandamus and reinstated the abortion ban.[17]

On April 22, a new state order, confirmed in the State’s court filing, officially allowed abortion providers to resume services.[18]

What remains unclear is the role of the Fifth Circuit when a state’s emergency powers clashes with individual liberty. Justice Jackson’s warning in his Korematsu v. United States dissent remains a relevant caution: “[excessive state power] lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”[19]

[1] In re Abbott II, 956 F.3d 696, 740 (5th Cir. 2020) (Dennis, J., dissenting in part) (explaining that decision would be the seventh time abortion’s status had changed during the pandemic); In re Abbott III, 809 F. App’x 200 (5th Cir. 2020) (holding medication abortion could resume); State Defs. Supp. Resp. to Pls.’ Mot. for Prelim. Inj. * 4, Planned Parenthood Ctr. for Choice v. Abbott, No. 20-cv-00323 (W.D. Tex. Apr. 22, 2020) (conceding under the new state order announced the day before that abortion procedures could resume).

[2] In re Abbott I, 954 F.3d 772, 777 (5th Cir. 2020).

[3] Planned Parenthood Ctr. for Choice v. Abbott I, 450 F. Supp. 3d 753, 756-57 (W.D. Tex. 2020), vacated, No. A-20-CV-323-LY, 2020 WL 1808897 (W.D. Tex. Apr. 8, 2020).

[4] In re Abbott I, 954 F.3d at 780.

[5] Id. at 790-91 (explaining the time limit for legal abortion in Texas is twenty-two weeks after the last menstrual period).

[6] Planned Parenthood Ctr. for Choice v. Abbott I, 450 F. Supp. 3d at 756-57.

[7] In re Abbott I, 954 F.3d at 758.

[8] Id. at 758-59.

[9] In re Abbott II, 956 F.3d at 724 (Dennis, J., dissenting in part) (quoting Ex Parte Fahey, 332 U.S. 258, 259 (1947)).

[10] 410 U.S. 113 (1973).

[11] 197 U.S. 11 (1905).

[12] In re Abbott I, 954 F.3d at 784.

[13] Id. at 800-02 (Dennis, J., dissenting) (quoting Jacobson v. Mass., 197 U.S. 11, 29).

[14] In re Abbott I, 954 F.3d at 804 (Dennis, J., dissenting).

[15] 505 U.S. 833 (1992).

[16] Planned Parenthood Ctr. for Choice v. Abbott II, No. A-20-CV-323-LY, 2020 WL 1815587, at *6-7 (W.D. Tex. April 9, 2020).

[17] In re Abbott II, 956 F.3d 696 (5th Cir. 2020).

[18] State Defs. Supp. Resp. to Pls.’ Mot. for Prelim. Inj. at 4, Planned Parenthood Ctr. for Choice v. Abbott, No. 20-cv-00323 (W.D. Tex. Apr. 22, 2020).

[19] 323 U.S. 214, 246 (1944).

Morrease Leftwich, CLS ’22

Abdullah Muhammad filed a Habeas Corpus petition in the U.S. District Court for the Eastern District of Pennsylvania this summer.[1] He is seeking relief from a sentence imposed by the Court of Common Pleas of Philadelphia County and upheld by the Superior Court of Pennsylvania. In his state appeal and in his Habeas Corpus petition, he makes a number of arguments which point to alleged improper behavior on behalf of the trial court. However, it is my opinion that his most meritorious argument has to do with a parole restriction the trial court imposed, which seems to be unauthorized under the text of the court’s supporting statute.

In 2014, the Court of Common Pleas of Philadelphia County convicted Muhammad of first degree murder. In the court’s opinion, the trial judge held that Muhammad was sentenced in accordance with 18 Pa.C.S. § 1102. [2] §1102 governs first degree murder sentencing; it allows the jury in such cases to decide between life imprisonment and death. [3] In the case of Muhammad, the government did not seek death. Considering the plain text of § 1102, it is reasonable to believe Muhammad’s sentence would be life imprisonment: “shall be sentenced to death or to a term of life imprisonment…” Instead, the court held, “where the Commonwealth did not seek the death penalty, life imprisonment without the possibility of parole was a mandatory sentence.”[4]

On review, the Superior Court of Pennsylvania upheld the parole restriction, framing it as an issue regarding 42 Pa.C.S. § 9756, [5] which requires that trial courts attach a minimum sentence to any sentence of total confinement. [6] This minimum sentence serves as a mandatory term of confinement, during which an inmate is not eligible for parole.[7] To justify an exemption from this rule, the Superior Court quoted the Pennsylvania Supreme Court’s decision in Hudson v. Pa. Board of Probation and Parole, which held that “the sole statutory directive for courts in imposing a minimum term of total confinement does not apply to mandatory life sentences.”[8] In Hudson, the Pennsylvania Supreme Court was adjudicating another challenge to a parole restriction.[9] To justify that trial court’s seemingly unauthorized parole restriction, [10] the Pennsylvania Supreme Court pointed to § 9756(c).[11] However, the problem is that the version the Court cited to is twenty-one years old.[12] The current version of § 9756(c) reads:

The court may impose a sentence to imprisonment without the right to parole under this subsection only when:(1) a summary offense is charged; (2) sentence is imposed for nonpayment of fines or costs, or both, in which case the sentence shall specify the number of days to be served; and (3) the maximum term or terms of imprisonment imposed on one or more indictments to run consecutively or concurrently total less than 30 days.[13]

In the Pennsylvania Supreme Court opinion, however, § 9756(c) begins, “[e]xcept in the case of murder of the first degree, the court may impose…”[14] Assuming the Court wouldn’t purposely misquote the statute, I reviewed older versions and found that such language which the Court imputed to § 9756(c) was last found in the 1999 version of the statute.[15] Given my understanding of the gravity of a life without parole sentence, this error is troubling to say the least.

That said, I do not believe that the change to § 9756 shows the legislature’s intent to make inmates like Muhammad parole eligible. Instead, I believe it only goes to show that the courts have no right to impose a parole restriction. Thus, I agree with the Pennsylvania Supreme Court’s reliance on the other statute it cited: 61 Pa.C.S. § 6137.[16] That statute is directed to the Parole Board and it denies the Board the right to parole inmates serving life sentences.[17] In the Pennsylvania Supreme Court’s opinion in Hudson, § 6137 was properly applied – the defendant brought a challenge to the Parole Board’s denial of the defendant’s parole application, instead of a challenge to a sentence.[18]

However, in the Superior Court’s opinion in Muhammad’s case, reliance on § 6137 and Hudson was misplaced. The fact that the legislature intends for the Parole Board to deny parole to Muhammad does not authorize the courts to preempt the parole board from doing just that. The Commonwealth of Pennsylvania is no different from the United States in that its governmental underpinning is the separation of powers. Accordingly, the Pennsylvania courts should clean up its jurisprudence on parole restrictions under 18 Pa.C.S. § 1102 sentencing. In this day-in-age, where criminal justice reform has already gained tank-like traction, it is reasonable to suspect that the Pennsylvania legislature may amend its statutory scheme to allow for the parole of reformed inmates serving life sentences, specifically by amendment of 61 Pa.C.S. § 6137.

My concern is that if the courts persist in upholding statutorily unauthorized life without parole sentences, those sentences will shield inmates like Muhammad from the lawful effects of such progressive statutory amendments.[19] The Pennsylvania courts clearly believe they are executing the legislative plan. However, by doing so, they will prevent future legislation from having its intended effect, thus standing in the way of legislative choice. Staying silent, except to execute the text of the statutes, would be a more effective way to implement the legislative plan. In the case of Muhammad’s Habeas Corpus petition, the U.S. District Court should make clear to the Pennsylvania courts that it recognizes its error and is willing to correct it in lieu of their own motivation to do so.

[1] Petition for Habeas Corpus, Muhammad v. Ransom, No. 20-4313 (E.D. Pa. Aug. 31, 2020)

[2] Commonwealth v. Muhammad, No. CP-51-Cr-0005853-2012, at *12 (Phila. C.P. Dec. 23, 2014) (written opinion filed Oct. 5, 2018).

[3] 18 Pa.C.S. § 1102(a)(1) (2020) (“[A] person who has been convicted of a murder of the first degree or of murder of a law enforcement officer of the first degree shall be sentenced to death or to a term of life imprisonment in accordance with 42 Pa.C.S. § 9711 (relating to sentencing procedure for murder of the first degree).”); 42 Pa.C.S. § 9711(a)(1) (2020) (“[T]he jury shall determine whether the defendant shall be sentenced to death or life imprisonment.”).

[4] Muhammad, No. CP-51-Cr-0005853-2012, at *12

[5] Commonwealth v. Muhammad, No. CP-51-Cr-0005853-2012, 2019 Pa. Super. LEXIS 4663, at *11 (Pa. Super. Ct. Dec. 19, 2019).

[6] 42 Pa.C.S. § 9756(b)(1) (2020).

[7] Id. at § 9756(b)(2).

[8] Muhammad, 2019 Pa. Super. LEXIS 4663, at *11 (quoting Hudson v. Pennsylvania Board of Probation and Parole, 204 A.3d 392, 398 (Pa. 2019))

[9] Id. at 394-96 This case actually involved an inmate’s challenge to the Pennsylvania Parole Board’s denial of his application for parole. It can further be differentiated by the fact that the defendant was serving a life sentence for a second-degree murder conviction.

[10] Id. at 394-95 (The ‘parole restriction’ imposed was really just a failure on behalf of the trial court to impose a minimum sentence in accordance with 42 Pa.C.S. § 9756(b)(1)).

[11] Hudson, 204 A.3d at 398.

[12]  Compare 42 Pa. Cons. Stat. § 9756 (2000) with 42 Pa. Cons. Stat. § 9756 (1999).

[13] 42 Pa.C.S. § 9756(c) (2020), https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/42/00.097.056.000..HTM [https://perma.cc/HF9G-ZYB5].

[14] Hudson, 204 A.3d at 398.

[15] Compare 42 Pa. Cons. Stat. § 9756 (2000) with 42 Pa. Cons. Stat. § 9756 (1999).

[16] Hudson, 204 A.3d at 398.

[17] See 61 Pa.C.S. § 6137(a)(1) (2020) (“The board. . . may release on parole any inmate. . . except an inmate condemned to death or serving life imprisonment. . .”).

[18] Hudson, 204 A.3d, at 394.

[19] As Hudson shows, such a change in the legislative plan would still face the obstacle posed by the fact that the Pennsylvania courts almost never impose minimum sentences on defendants sentenced to life imprisonment. See, e.g., Commonwealth v. Manning, 495 Pa. 652 (Pa. 1981); Commonwealth v. Yount, 419 Pa. Super. 613 (Pa. Super. Ct. 1992). However, it would be easier for the legislature to impose a general minimum sentence by statute for those defendants than it would be to correct individual cases of judicial overreach on behalf of a few overzealous trial courts.

Sam Ackerman, CLS ’22

Unlike most federal agencies, the Federal Elections Commission (FEC) is uniquely led by an equal number of Democrat and Republican commissioners.[1] Because issues related to election integrity impact all Americans, the Federal Election Campaign Act (FECA)—the FEC’s governing statute—provides for the right of private parties to file complaints and appeal non-enforcement decisions to the U.S. District Court for the District of Columbia.[2] If the District Court finds the FEC’s dismissal of a complaint to be “contrary to law,” the FEC must either enforce the matter, or the complainants may bring a civil action against the accused party themselves.[3] However, following the March 2019 D.D.C. decision in CREW v. FEC (New Models), the citizen-led review mechanism and FECA’s distinctive statutory structure may be cast asunder.

In 2014, Citizens for Responsibility and Ethics in Washington (CREW), an election ethics watchdog, filed a complaint with the FEC against a conservative organization called New Models for failing to disclose its donors.[4] FECA (and subsequent case law interpreting FECA) requires any organization that makes more than $1,000 in expenditures towards influencing elections and for whom influencing elections is a “major purpose” to register as a political committee subject to donor disclosure regulations.[5] In 2012, New Models spent $3 million, or 68%, of its total spending on Political Action Committees (PACs), and thus, CREW argued that New Models itself is a “political committee” under FECA.[6] In its complaint, CREW asserted that $3 million in spending is far beyond the $1,000 statutory threshold for expenditures.[7] CREW then asserted that New Models had a “major purpose” of electing candidates because far more than a simple majority (68%) of its spending went towards PACs.[8]

Nonetheless, the FEC—in a 2-2 party-line split—dismissed the complaint against New Models.[9] The GOP commissioners claimed that New Models’ $3 million in spending was merely contributions and not expenditures[10], and thus, the spending does not qualify towards FECA’s $1,000 expenditure requirement.[11] Further, the commissioners looked at New Model’s spending over a number of years—which then averaged out to less than 50% of spending—to determine that New Models lacked a “major purpose” in electing candidates.[12] CREW filed a complaint to the D.D.C., as case law seemed to invariably point to the fact that both of the FEC’s interpretations of FECA’s requirements had been uniformly rejected by the courts.[13]

Upon CREW’s 2018 appeal to the D.D.C., however, the District Court did not get a chance to address the substantive claims that most likely would have favored the complainants. Rather, the court claimed that “because the Controlling Commissioners invoked prosecutorial discretion, the Court is also foreclosed from evaluating the Controlling Commissioners’ otherwise reviewable interpretations of statutory text and case law.”[14] As it turned out, the 32-page dismissal memo that engaged in deep and likely flawed interpretations of FECA, passively used the phrase “prosecutorial discretion” in a single sentence in the memo’s conclusion.[15]

Although the case is currently on appeal to the D.C. Circuit, the ruling as it stands has the potential to eviscerate FECA’s deliberately bipartisan enforcement structure that allows citizens to challenge non-enforcement decisions. The D.D.C.’s creation of a magic words-like test will certainly ensure that the term “prosecutorial discretion” is inserted in any politically salient non-enforcement memo. Such a change in the FEC appeals process flies in the face of Congress’ goals in enacting FECA: to ensure partisanship does not infect the enforcement of integrity in elections.

The decision could also have consequences that pervade the post-Citizens United campaign finance system generally. Citizens United allowed for a flurry of uncoordinated, independent expenditures made by individuals, corporations, and non-profits alike.[16] However, Citizens United was also predicated on the notion that corruption in independent expenditures is not a compelling state concern, so long as there is a rigorous system of donor disclosure.[17] If a partisan group of commissioners can effectively block action against political allies without a shred of legal justification, then there is reason to doubt that the disclosure system will continue to act as a partial (albeit inadequate) check on unlimited outside expenditures and the appearance of corruption unlimited expenditures may evoke. With no hearing in sight at the D.C. Circuit, CREW v. FEC (New Models) will certainly curtail FEC enforcement as the country enters into the final stages of what will likely be the most expensive presidential election in American history.

[1] 52 U.S.C. § 30106(a)(1).

[2] 52 U.S.C. § 30109(a)(8)(A).

[3] 52 U.S.C. § 30109(a)(8)(C).

[4] Complaint, CREW v. FEC (New Models), No.1:18-cv-00076 (D.D.C. filed Jan. 12, 2018).

[5] 52 U.S.C. § 30101(4)(A); 52 U.S.C. § 30104(b)(2)–(8); Buckley v. Valeo, 424 U.S. 1, 79 (1976) (requiring the influencing of election outcomes to be a “major purpose” under FECA).

[6] Id. at 1-2.

[7] Id. at 2.

[8] Id. at 9.

[9] See, Statement of Reasons of Vice Chair Caroline C. Hunter and Comm’r Lee E. Goodman, MUR No. 6872 (Dec. 20, 2017), https://eqs.fec.gov/eqsdocsMUR/17044435569.pdf.

[10] FECA defines “contributions” in part as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). FECA defines “expenditure” to be inclusive of many forms of contributions and is similarly defined in part as “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(9)(A)(i).

[11] Id. at 18.

[12] Id. at 20.

[13] See, CREW v. FEC, 209 F. Supp. 3d 77, 94 (D.D.C. 2016) (“CREW/AAN”) (explaining that a multi-year approach to the major purposes test is impermissible); Shays v. FEC, 511 F. Supp. 2d 26-27 (D.D.C. 2007) (suggesting that once a major purpose is established, the term “expenditure” is to be broadly construed to encompass all spending to influence the outcome of an election).

[14] CREW v. FEC (New Models) at 22-23, No. 1:18-cv-00076-RC, (D.D.C. 2019).

[15] Statement of Reasons of Vice Chair Caroline C. Hunter and Comm’r Lee E. Goodman at 31, MUR No. 6872 (Dec. 20, 2017), https://eqs.fec.gov/eqsdocsMUR/17044435569.pdf.

[16] Karl Evers-Hillstrom, More Money, Less Transparency: A Decade Under Citizens United, Open Secrets (Jan. 14, 2020), https://www.opensecrets.org/news/reports/a-decade-under-citizens-united.

[17] Citizens United v. FEC, 558 U.S. 310, 370-71 (2010).

Cole Campbell, CLS ’21

A United States District Court recently found that particular regulations targeting littering—and ostensibly unauthorized immigration—substantially burdens the free exercise of some religious practices.[1] Because these regulations are not the least restrictive means of fulfilling a compelling government interest, the court declared them invalid under the Religious Freedom Restoration Act.

Understanding how federal littering and permitting regulations could be invalidated as unduly burdensome on religious practices requires a bit of statutory background. The Religious Freedom Restoration Act, or “RFRA,” was passed by Congress in 1993 to protect the free exercise of religion. At its core, RFRA exempts religious practitioners from laws that substantially burden the exercise of their religious beliefs. But the government can override the exemption if they show that the application of that law to that practitioner is the “least restrict means” of furthering a “compelling government interest.”[2]

Lawyers and law students will recognize that language as akin to the “strict scrutiny” test employed by courts to adjudge government interference in sensitive areas like free speech and religious liberty. Here, Congress essentially imposed strict scrutiny on all federal action that touches on religious practice. Congress is understood to have overruled or superseded a past Supreme Court holding, Employment Division v. Smith (1990), which held that the Free Exercise Clause of the First Amendment “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.”[3]

Enter the defendants in United States v. Hoffman (D. Ariz. 2020). The defendants, including named defendant Natalie Hoffman, are volunteers with “No More Deaths,” an organization associated with the Unitarian Universalist Church of Tucson. No More Deaths was founded to combat the deaths of migrants who attempted to enter the United States across dangerous terrain. The group would leave jugs of water in highly trafficked desert areas to help prevent dehydration.

And the defendants did just that in the Cabeza Prieta National Wildlife Refuge in southern Arizona. They entered the park without the requisite permitting, travelled down a restricted-access road to their destination, and dropped off food and water for the anticipated migrants. The defendants were subsequently charged with violating a series of regulations governing the CPNWR, including one that prohibited leaving water bottles, food, blankets, and clothing on the Refuge.[4]

The defendants ultimately raised a defense under RFRA, claiming that the park regs could not be applied to their activities, which they characterized as religious in nature. A typical RFRA analysis will consider first whether the Defendants are being prosecuted for a “sincere exercise of religion,” and then the court will move on assess whether the burden is substantial, whether the government interest is compelling, and whether the law or regulation is the least restrictive means of fulfilling that compelling interest. The defendants succeeded on all counts, but the court’s “sincere exercise of religion” analysis is particularly interesting.

The bulk of the court’s analysis revolves around determining whether the defendants’ practice can be characterized as religious, and whether it is sincere.[5] This is perhaps understandable: the court does not want every defendant cloaking their illegal actions in the garb of religious practice. But it is also a delicate venture. Throughout the opinion, the court is self-conscious of the distastefulness of a court evaluating whether someone’s beliefs are sufficiently sincere—especially in the religious context.[6] And because “No More Deaths” is not overtly religious, but is rather associated with the Unitarian Universalist Church, the court had a tough task on its hands.

The court ultimately engaged in a fine-grained analysis of the defendants’ religious beliefs. With certain defendants, the religious nature of the acts was apparent; Reverend Fife tied his actions to Christ’s words at the Last Judgment. But another defendant gestured towards her belief that their humanitarian activity was “sacred,” and characterized her moments of silence in the desert as a “sort of prayer.”[7] Some of the analyzed testimony would probably not strike one as traditionally “religious,” but the court cited precedent from the Supreme Court and a pair of sister circuits that suggests the protected belief need not fall within an established religion.

The Ninth Circuit will have its say on whether the defendants’ activities are properly protected under RFRA: the prosecutors have reportedly appealed the District Court’s judgment.

[1] United States v. Hoffman, 2020 U.S. Dist. LEXIS 19060 (D. Ariz. 2020).

[2] 42 U.S.C. 2000bb-1(b).

[3] Employment Div. v. Smith, 494 U.S. 872, 879 (1990).

[4] 50 C.F.R. 27.93.

[5] Hoffman, 2020 U.S. Dist. LEXIS 19060 at *10-24.

[6] Id. at *10 (“The Supreme Court has long recognized that a determination of what is a religious belief or practice is a most delicate question” (internal citations and quotation marks omitted)).

[7] Id. at *14-15.

Leo Weissburg, CLS ’21

You may not have heard of Clearview AI. However — if you are one of the hundreds of millions of Americans with a Facebook, Instagram, or Linkedin account — Clearview has almost certainly heard of you. Since 2016, Clearview has quietly “scraped” billions of publicly available photos from millions of websites.^[i] Clearview has used these photos to create a powerful facial recognition app: users simply upload a photo of a person, and Clearview’s app provides links to other publicly available photos of the person — such as their Facebook profile.^[ii] Clearview’s database is orders of magnitude larger than typical law enforcement facial recognition databases — which draw mostly from drivers’ license, passport, and jail booking photos.^[iii] Clearview counts Walmart, the NBA, ICE, and hundreds of local police departments among its clients.^[iv] Since January 2020, when New York Times reporting first brought Clearview’s activities into the public eye, Clearview has been subject to numerous legal threats.

Congress has not yet enacted a general federal data privacy law.^[v] However, some indications suggest that one may not be far off. California has passed the California Citizens’ Privacy Act (CCPA), a broad data privacy statute modeled on the European Union’s recently enacted General Data Protection Regulation (GDPR).^[vi] Many state legislatures are considering similar proposals.^[vii] Concerned that technology companies may face inconsistent (and strict) state privacy regimes, the Chamber of Commerce supports federal legislation in principle.^[viii] Two proposed bills await consideration in the Senate, one supported by the Republican caucus and another supported by the Democrats.^[ix] Concerns about Clearview’s practices may help spur action — Senators Ed Markey and Ron Wyden have sent letters to the company questioning their practices and seeking additional information.[x]

Until Congress enacts federal privacy legislation, affected parties must rely on state law remedies — or pursue theories unrelated to data privacy. Today, the CCPA is the nation’s broadest data privacy law.[xi] In relevant part, the CCPA requires that companies notify individuals when collecting their personal information.^[xii] Companies that collect personal information must also delete all collected information upon request, and allow individuals to opt-out of collection.^[xiii] To satisfy its CCPA obligations, Clearview publishes a “Clearview California Privacy Notice” on its website.^[xiv] While the notice does explain Clearview’s deletion and opt-out procedures, it isn’t clear whether such a statement satisfies the CCPA’s mandate that disclosure be made “at or before the point of collection.”

Putative class actions have been filed in California under the CCPA^[xv] and in Illinois — under that state’s “Biometric Information Privacy Act,” a 2008 law that prohibits companies from collecting individuals’ biometric data without consent.^[xvi] Vermont’s Attorney General has also sued, alleging that Clearview’s practices violate Vermont consumer protection law.^[xvii] The online services from which Clearview obtained photos have also threatened litigation. Facebook, Google, Twitter, Linkedin, Venmo, and Youtube have issued cease-and-desist letters to Clearview, each alleging that Clearview has violated the services’ terms of use.^[xviii] Clearview responds that it has a First Amendment right to make use of publicly available information.^[xix] A recent Ninth Circuit case, HiQ Labs, Inc. v. Linkedin Corp., 938 F.3d 985 (9th. Cir. 2019), involved (but did not resolve) a similar argument.^[xx] There, Linkedin argued that, by “scraping” publicly available information from Linkedin, HiQ had accessed data without authorization — thus violating the Computer Fraud and Abuse Act (CFAA).^[xxi] The Ninth Circuit rejected this restrictive reading of the CFAA—but did not address HiQ’s First Amendment argument.^[xxii]

Despite these legal challenges and mounting pressure from groups like the ACLU, Clearview’s founder has vowed that his company will continue to operate.^[xxiii] It remains to be seen whether the growth of Clearview and other companies like it will spur Congress to act on a federal privacy bill.

^[i] “Scraping” refers to automated downloading of publically-available web content, typically images. Louise Matsakis, Scraping the Web Is a Powerful Tool. Clearview AI Abused It, Wired, (Jan 25, 2020), https://www.wired.com/story/clearview-ai-scraping-web/.

^[ii] Kashmir Hill, The Secretive Company That Might End Privacy as We Know It, N.Y. Times, (Jan. 18, 2020), https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html.

^[iii] Kaixin Fan, Clearview AI Responds to Cease-and-Desist Letters by Claiming First Amendment Right to Publicly Available Data, JOLT Digest, Harv. J. L. & Tech. (Feb. 25, 2020), http://jolt.law.harvard.edu/digest/clearview-ai-responds-to-cease-and-desist-letters-by-claiming-first-amendment-right-to-publicly-available-data.

^[iv] Ryan Mac et. al., Clearview’s Facial Recognition App Has Been Used By The Justice Department, ICE, Macy’s, Walmart, And The NBA, Buzzfeed News (Feb. 27, 2020), https://www.buzzfeednews.com/article/ryanmac/clearview-ai-fbi-ice-global-law-enforcement.

^[v] David Saunders & Allison Glover, INSIGHT: A Federal Privacy Bill May Be Closer Than Once Thought, Bloomberg Law, (Feb. 14, 2020), https://news.bloomberglaw.com/privacy-and-data-security/insight-a-federal-privacy-bill-may-be-closer-than-once-thought.

^[vi] Anjali C. Das & Stefanie L. Ferrari, California Consumer Privacy Act Effective January 1, Nat’l L. Rev., (Dec. 3, 2019), https://www.natlawreview.com/article/california-consumer-privacy-act-effective-january-1-update.

^[vii] Rachel Marmor et. al., “Copycat CCPA” Bills Introduced in States Across Country, DWT Privacy & Security Law Blog, (Feb. 8, 2020), https://www.dwt.com/blogs/privacy–security-law-blog/2019/02/copycat-ccpa-bills-introduced-in-states-across-cou/.

^[viii] David Saunders & Allison Glover, INSIGHT: A Federal Privacy Bill May Be Closer Than Once Thought, Bloomberg Law, (Feb. 14, 2020), https://news.bloomberglaw.com/privacy-and-data-security/insight-a-federal-privacy-bill-may-be-closer-than-once-thought.

^[ix] Id.

Wendy Zhang, Comprehensive Federal Privacy Law Still Pending, Nat’l. Law Review, (Jan. 22, 2020), https://www.natlawreview.com/article/comprehensive-federal-privacy-law-still-pending.

[x] Ryan Mac et. Al., Senators Are Probing Clearview AI On The Use Of Facial Recognition By Gulf States And International Markets, Buzzfeed News, (Mar. 4, 2020), https://www.buzzfeednews.com/article/ryanmac/senators-markey-wyden-clearview-ai-facial-recognition.

[xi] Anjali C. Das & Stefanie L. Ferrari, California Consumer Privacy Act Effective January 1, Nat’l L. Rev., (Dec. 3, 2019), https://www.natlawreview.com/article/california-consumer-privacy-act-effective-january-1-update.

^[xii] Id.

^[xiii] Id.

^[xiv] California Privacy Notice, Clearview AI, (Last visited Mar. 31, 2020), https://staticfiles.clearview.ai/clearview_california_notice.html.

^[xv] The CCPA provides no private right of action, except for claims arising out of data breaches or hacks. The Burke complaint frames the alleged CCPA violations as also violating the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, which prohibits businesses from engaging in practices that violate other California laws—such as the CCPA. Complaint, Burke v. Clearview AI, Inc., No. 3:20-cv-00370, 4 (S.D. Cal. Feb. 27, 2020). However, the CCPA appears to explicitly disclaim this kind of bootstrapping. Cal. Civ. Code § 1798.150(c) (“Nothing in this title shall be interpreted to serve as the basis for a private right of action under any other law.”).

^[xvi] Daniel R. Stoller, Sarah Merken, Clearview AI Faces California, Illinois Lawsuit After Breach, Bloomberg Law, (Feb 28, 2020), https://news.bloomberglaw.com/privacy-and-data-security/clearview-ai-faces-california-illinois-lawsuit-after-breach.

^[xvii] Complaint, State of Vermont v. Clearview AI, Inc., Vt, Super. Ct. (Filed Mar. 10, 2020);

Press Release, Office of the Vermont Attorney General, Attorney General Donovan Sues Clearview AI for Violations of Consumer Protection Act and Data Broker Law (Mar. 10, 2020), https://ago.vermont.gov/blog/2020/03/10/attorney-general-donovan-sues-clearview-ai-for-violations-of-consumer-protection-act-and-data-broker-law/.

^[xviii] Kashmir Hill, Twitter Tells Facial Recognition Trailblazer to Stop Using Site’s Photos, N.Y. Times, (Jan 22, 2020) https://www.nytimes.com/2020/01/22/technology/clearview-ai-twitter-letter.html.

^[xix] Kaixin Fan, Clearview AI Responds to Cease-and-Desist Letters by Claiming First Amendment Right to Publicly Available Data, JOLT Digest, Harv. J. L. & Tech. (Feb. 25, 2020), http://jolt.law.harvard.edu/digest/clearview-ai-responds-to-cease-and-desist-letters-by-claiming-first-amendment-right-to-publicly-available-data.

^[xx] HiQ Labs, Inc. v. Linkedin Corp., 938 F.3d 985 (9th. Cir. 2019).

^[xxi] Kaixin Fan, Clearview AI Responds to Cease-and-Desist Letters by Claiming First Amendment Right to Publicly Available Data, JOLT Digest, Harv. J. L. & Tech. (Feb. 25, 2020), http://jolt.law.harvard.edu/digest/clearview-ai-responds-to-cease-and-desist-letters-by-claiming-first-amendment-right-to-publicly-available-data.

^[xxii] Id.

^[xxiii] Caroline Haskins et. al., The ACLU Slammed A Facial Recognition Company That Scrapes Photos From Instagram And Facebook, Buzzfeed News, (Feb. 10, 2020) https://www.buzzfeednews.com/article/carolinehaskins1/clearview-ai-facial-recognition-accurate-aclu-absurd.

Bastian Shah, CLS ’21

As governments ban gatherings to stop the spread of Covid-19, workplaces and universities are shifting to teleconferencing platforms to replace in-person meetings and classes. Before the pandemic, Zoom had been a go-to teleconferencing platform for companies and universities.[1] Now, many schools and businesses, including Columbia University, are meeting exclusively over Zoom. Data privacy watchdogs and digital rights groups have raised questions about Zoom’s use and handling of user data.[2] In the rush to implement social distancing while maintaining business and learning, one may question whether decisionmakers adequately considered security and privacy when choosing a teleconferencing platforms. This post summarizes what we know and don’t know about Zoom’s 1) collection, 2) sale, and 3) disclosure to law enforcement of user data.

Zoom’s Data Collection

The Electronic Frontier Foundation (EFF), an impact litigation organization advocating online free speech, has raised concerns about how much data Zoom collects from users.[3] Like most paid online services, Zoom collects payment information, names, physical locations, and device information from its users.[4] In addition, Zoom allows administrators, like employers and school officials, to record meeting sessions and track users’ computer usage while Zoom is open.[5] It is these employer surveillance measures to which EFF primarily objects.[6] As a result of social distancing policies, employers are surveilling workers in their own homes, raising additional privacy concerns.

Sale of User Data

Zoom’s “Privacy Policy” is ambivalent about whether it sells user data. It does not “allow marketing companies, advertisers, or anyone else to access Personal Data in exchange for payment.”[7] Zoom, in its “humble opinion,” does not “think most of [its] users would see [it] as selling their information.”[8] However, Zoom does share data with third parties, like Google Ads, that advertise on Zoom,[9] and those third parties may use that data for their general advertising business. Despite its “humble opinion,” Zoom’s distribution of user data to third parties for advertising purposes “may be considered a ‘sale’ … under the California Consumer Privacy Act.”[10] Zoom users in California can, therefore, opt-out of the sale of their data to third parties. Students and employees from other states required to use Zoom must either acquiesce to the sale of their data to third parties or discontinue schooling or employment.

Sharing Data with Law Enforcement.

Access Now, a watchdog group that advocates for digital privacy and civil rights, has sent an open letter to Zoom.[11] The letter requests Zoom issue reports on what “safeguards against government abuses” it has in place and “the number of government requests for user data” it receives.[12] Many large tech companies, including Microsoft, which operates Skype; Google, which operates Hangouts; and Facebook, which operates WhatsApp, publicly report data on government requests for user information and policies for data breaches.[13] Zoom does not currently issue such a report. Zoom discloses no information on how many law enforcement demands it receives, nor whether it notifies customers whose information has been requested by law enforcement. Zoom’s privacy policy states that the company will respond “to a legally binding demand for information” but gives no detail on how, or if, it protects against government overreach.[14] Fear of government overreach is compounded by the existence of “Zoom for Government,” a Zoom service for government agencies accredited and used by the Department of Homeland Security.[15] Vulnerable populations, such as undocumented immigrants, may feel less safe working or learning from home with the knowledge that Zoom may, without notice, disclose their location and demographic data to law enforcement.

Teleconferencing platforms like Zoom are allowing important economic and educational activities to continue despite the Covid-19 pandemic. However, those advocating for legal protections for digital privacy have questioned whether Zoom is unambiguously positive for students and employees. Without nationwide legislation addressing online privacy and security rights, states and watchdog groups are left on their own in addressing the digital side of the current crisis.

[1] See Laurie Clarke, Zoom Urged to Be Transparent About Government Data Requests, New Statesman (Mar. 19, 2020), https://tech.newstatesman.com/security/zoom-government-data-requests (“Even before the coronavirus outbreak, Zoom was reportedly used by over 60 per cent of Fortune 500 companies and over 96 per cent of the top 200 universities in the US.”)

[2] See Isedua Oribhador, et al., Open Letter: Zoom’s Policies Affecting Digital Rights, Access Now (Mar. 18, 2020), https://www.accessnow.org/cms/assets/uploads/2020/03/Letter-to-Zoom-.pdf; Lindsay Oliver, What You Should Know About Online Tools During the Covid-19 Crisis, Electronic Frontier Foundation (Mar. 19, 2020), https://www.eff.org/deeplinks/2020/03/what-you-should-know-about-online-tools-during-covid-19-crisis;

[3] See Oliver, supra note 2.

[4] Zoom Privacy Policy, Zoom (Mar. 18, 2020), https://zoom.us/privacy.

[5] Attendee Attention Tracking, Zoom (last visited Mar. 29, 2020), https://support.zoom.us/hc/en-us/articles/115000538083-Attendee-attention-tracking (detailing how to ensure employees keep the Zoom app “in focus” on their screens during meetings).

[6] See Oliver, supra note 2.

[7] Zoom Privacy Policy, supra note 4.

[8] See id.

[9] See id.

[10] Id. (California Consumer Privacy Act information only appears as a pop-up when viewing the website on a computer located in California or using a private browser session) (on file with Colum. J.L.. & Soc. Probs.). See also, Cal. Civ. Code § 1798.140(t)(1) (Deering 2020) (“‘[S]ale’ … means … making available … a consumer’s personal information by the business to another business or a third party for monetary or other valuable consideration.”).

[11] See Oribhador, supra note 2.

[12] Id.

[13] See Transparency Reporting Index, Access Now (last visited Mar. 22, 2020), https://www.accessnow.org/transparency-reporting-index/.

[14] See Zoom Privacy Policy, supra note 4.

[15] See Priscilla Barolo, Zoom Achieves FedRAMP Moderate Authorization, Zoom (May 7, 2019), https://blog.zoom.us/wordpress/2019/05/07/zoom-achieves-fedramp-moderate-authorization/ (Announcing Zoom for Government’s sponsorship by the United States Department of Homeland Security); Who’s Behind Ice: The Tech and Data Companies Fueling Deportations, National Immigration Project at 6, 24 (last visited Mar. 29, 2020), https://www.nationalimmigrationproject.org/PDFs/community/2018_23Oct_whos-behind-ice.pdf (noting that “Zoom for Government” is used by the Department of Homeland Security, possibly for Customs and Border Protection).

Katie Friel, CLS ’21

On November 8, 2018, Florida passed Amendment 4 to its constitution, restoring the voting rights of the state’s ex-felons who have completed all terms of their sentences, including parole or probation.[1] According to reports, Amendment 4 would make an estimated 1.4 million Floridians eligible to vote.[2] In a matter of months after Amendment 4’s passage, in June 2019, Florida Governor Ron DeSantis signed Senate Bill 7066, which implemented the Amendment and interpreted its language of “completion of all terms of sentence” to include a requirement that a felon pay all fines, fees, and restitution associated with his sentence before any rights are restored.[3] The Supreme Court of Florida subsequently confirmed this interpretation of Amendment 4, ruling that the text of the Amendment required completion of all payments associated with an individual’s sentence as a precondition to re-enfranchisement.[4]

Almost immediately after the enactment of SB 7066, seventeen ex-felons in Florida filed suits in federal court, challenging the constitutionality of SB 7066’s “fines and fees” requirement.[5]  As the highest court in the state, the Florida Supreme Court’s prior interpretation of Amendment 4 is determinative;[6] therefore, the only question for the federal courts is whether SB 7066 and Amendment 4, so interpreted, violates the United States Constitution. The fines and fees requirement, plaintiffs argued in a consolidated action in the Northern District of Florida, is a violation of the Equal Protection Clause of the 14^th Amendment because it punishes indigent citizens more harshly—by denying them the right to vote—than those who are able to pay their fines and fees.[7] Were it not for this requirement and their genuine inability to pay, plaintiffs argued, they would be eligible to vote under Amendment 4.[8] Following an evidentiary hearing, the district court granted plaintiffs’ motion for a preliminary injunction on October 18, 2019, enjoining the defendants from denying them access to the ballot box based solely on their inability to pay their fines and fees.[9]

Defendants subsequently appealed the district court’s injunctive relief, and, on February 19, 2020, the 11^th Circuit issued its decision on the matter.[10] The Court of Appeals found that the fines and fees requirement disproportionally punishes those who are unable to pay, resulting in the loss of a fundamental right—that to vote.[11] Typically, felon disenfranchisement and re-enfranchisement schemes are subject to rational basis review[12]; however, there are instances that may call for stricter scrutiny. For example, though wealth is not typically a suspect class, as the circuit court noted, Supreme Court precedent suggests that wealth classifications may be subject to heightened scrutiny when “they are used to restrict access to the franchise and in the administration of criminal justice,” both of which apply in Jones[13]; further, heightened scrutiny traditionally applies when fundamental rights are implicated—fundamental rights such as the right to vote.[14] As such, the court found, an analysis of the fines and fees requirement warrants heightened scrutiny.[15] Applying this standard, the 11^th Circuit found that the requirement likely violates the Equal Protection Clause as applied to the seventeen plaintiffs in the case.[16] Therefore, having also concluded that the plaintiffs would suffer irreparable injury in the absence of injunctive relief[17], that potential injury outweighs any harm to the defendants[18], and relief would be in the public interest[19], the court affirmed the district court’s preliminary injunction.[20]

[1] Jones v. Governor of Fla., 950 F.3d 795, 800 (11th Cir. 2020).

[2] Id.

[3] Id.

[4] Id. at 803.

[5] Id. at 804.

[6] Id.

[7] Id. at 805.

[8] Id. at 804.

[9] Id. at 805.

[10] Id. at 800.

[11] Id. at 800.

[12] Id. at 823.

[13] Id. at 808.

[14] Id.

[15]  Id. (“Once a state provides an avenue to ending the punishment of disenfranchisement, it must do so consonant with the principles of equal protection, and it may not erect a wealth barrier absent a justification sufficient to overcome heightened scrutiny.”).

[16] Id. at 827.

[17] Id. at 828.

[18] Id. at 829-30.

[19] Id. at 830-31.

[20] Id. at 832-33.

Jaime Brosnan, CLS ’21

Throughout the coronavirus pandemic, Americans have heard the President issue federal stay-at-home guidelines, including a nationwide lockdown until April 30^th. Americans have also heard the President discuss potentially lessening those restrictions and reopening businesses after this date; however, it is not his call to make. [1]  Although it may appear from the Coronavirus Task Force press conferences that the President ordered the current lockdowns, it is the state governments who possess the authority to impose these types of restrictions, although they often take their cues from the federal government. States have the police power to regulate almost everything in its state, including the ability to issue statewide lockdowns, force closures of institutions and businesses, limit public gatherings and prevent travel.[2] Protecting public health and safety is one of the states’ most compelling use of state power. [3] Under the Constitution, the federal government has a limited set of enumerated powers, leaving the state government with the primary authority to fight the pandemic.[4] States have many key advantages over the federal government in enacting these types of restrictions during an emergency, including more knowledge on its own resources and hazards, ability to shape policies on local issues and more flexibility to alter their emergency response plans.[5] That’s not to say the federal government does not possess any power during this crisis. The federal government has the power to provide medical supplies, transfer money to state governments, bar individuals with coronavirus from entering the United States, and fund research for a vaccine. It cannot, however, impose statewide quarantines.[6]

While some experts suggest a national lockdown would dramatically help slow the spread of the coronavirus[7], the United States federalism system likely prevents the federal government from officially enacting one and, instead, leaves that power in the hands of the individual states.[8] Although national emergencies, especially wartime, usually give rise to broader presidential power, a national shelter-in-place order is unprecedented and could likely be challenged in court.[9] While the President’s constitutional authority during emergency crises is not entirely defined[10], without an executive order to the contrary, the states have the lockdown power in their hands. A successful nationwide lockdown would require joint cooperation from all states, but states have each enacted varying levels of restrictive measures. Thirteen states, including New York and California, enacted the most restrictive measures in closing all nonessential businesses and prohibiting all gatherings. [11] Meanwhile, twelve states have yet to issue official statewide stay-at-home orders, including Alabama, Arkansas, Iowa, Missouri and North Dakota.[12] All states have issued some form of restriction, but their degree of prohibitions and exemptions vary. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases and a key leader in the administration’s coronavirus response, does not believe a nationwide shutdown is necessary because of the variation in infection rates across the states. [13] Nonetheless, responsibility for making decisions about the pandemic rests with the states, not the federal government, so look to your state governor for an update on your state’s individual restrictive stay-at-home measures during this pandemic.

[1] Walter Olson, Federalism and the Coronavirus, The Wall Street Journal https://www.wsj.com/articles/federalism-and-the-coronavirus-lockdown-11585609012

(Mar. 30, 2020).

[2] John Yoo, Pandemic Federalism, National Review, https://www.nationalreview.com/2020/03/pandemic-federalism/ (Mar. 20, 2020).

[3] Id.

[4] Id.

[5] See Olson, supra note 1.

[6] See Yoo, supra note 2.

[7] Nurith Aizenmen, Experts Say the U.S. Needs a National Shutdown ASAP—But Differ on What Comes Next, National Public Radio https://www.npr.org/sections/health-shots/2020/03/27/822146372/experts-say-the-u-s-needs-a-national-shutdown-asap-but-differ-on-what-comes-next (Mar. 27, 2020).

[8] See Yoo, supra note 2.

[9] Reid Wilson, Could Trump Declare a National Coronavirus Shutdown? Momentum is Rising, The Hill https://thehill.com/homenews/state-watch/488735-could-trump-declare-national-coronavirus-shutdown-momentum-is-rising (Mar. 20, 2020).

[10] Id.

[11] Id.

[12] Cristina Marcos, Several States Have Yet to Issue Stay-at Home Orders, The Hill https://thehill.com/homenews/state-watch/490695-several-states-have-yet-to-issue-stay-at-home-orders (Apr. 1, 2020).

[13] See Aizenman, supra note 6.

Morgan Marmaro, CLS ’21

For many of us, the COVID-19 pandemic has brought life to a halt. States have rushed to implement social distancing measures, ordering the close of non-essential businesses while non-essential workers work from home. This has provoked the question of “what is essential?” Hospitals, sanitation, courier, and restaurant workers all made the cut.[1] While keeping hospitals and streets clean are essential, Trump’s Environmental Protection Agency made the decision on March 26th that enforcing environmental violations was non-essential.[2]

There has been a backlash against the new temporary policy as many see the move as the administration taking advantage of an unprecedented global pandemic to advance their deregulatory agenda. Though facilities must comply with regulations “where reasonably practicable,” the EPA will not “seek penalties for noncompliance with routine monitoring and reporting obligations.”[3] The EPA announcement stresses that the measures are temporary and only affect “routine monitoring and reporting obligations.”[4] Moreover, the policy only applies to civil violations and “does not provide leniency for intentional criminal violations of law.”[5]

To qualify for discretionary enforcement, facilities must provide documentation of “decisions made to prevent or mitigate noncompliance” and establish a causal link between the COVID-19 pandemic and the company’s noncompliance.[6] David Uhlmann, former chief of the environmental crimes section at the Justice Department, noted that suspicion of the decision—given Trump’s “deplorable record” on environmental protection—is not unfounded, but that “this policy may be less nefarious than the alarming environmental rollbacks that the Trump EPA continues to pursue.”[7]

Environmental advocates are unconvinced by the supposedly narrowly tailored policy. While some flexibility for the current pandemic might be understandable, environmental advocates are concerned that the COVID-19 pandemic is merely pretextual. Cynthia Giles, the former head of the EPA’s Office of Enforcement, noted that “[t]his EPA statement is essentially a nationwide waiver of environmental rules for the indefinite future” and that she is “not aware of any instance when EPA ever relinquished this fundamental authority as it does in this memo.”[8] After all,  as noted by senior attorney for Environment America, John Rumpler, “the absence of verified monitoring strikes at the heart of environmental compliance.”[9]

The policy also has some inconsistencies. While the EPA says documentation about the causal link between noncompliance and COVID-19 is mandatory to avail oneself of the enforcement discretion, it still forgoes all fines or civil penalties for failure to monitor, report, or meet other requirements.[10]  The L.A. Times was quick to note that the oil and gas industries had been lobbying for relaxed environmental enforcement due to staffing issues.[11] Gina McCarthy, the former Obama-era EPA chief explained her outrage at the policy, noting that the waiver applied to “standard work that takes very few people to do.”[12] She further commented that many of the companies lobbying to relax standards due to staffing issues are also lobbying to keep their factories open so workers can keep their jobs.[13]

By implementing this policy, states will lack critical data on what pollutants have been released, hampering future environmental clean-up efforts. It is also interesting to see an ex ante pass being given to facilities rather than dealing with cases as they come up post-pandemic. How effective, or ineffective, the nascent policy will be depends entirely on enforcement and implementation.

[1] And from all of us quarantined at home, thank you profusely!

[2] Press Release, Environmental Protection Agency, EPA Announces Enforcement Discretion Policy for COVID-19 Pandemic, EPA.GOV (Mar. 26, 2020), https://www.epa.gov/newsreleases/epa-announces-enforcement-discretion-policy-covid-19-pandemic-0.

[3] Isaac Scher, The Environmental Protection Agency says it won’t enforce its own rules during the coronavirus pandemic, Business Insider (Mar. 27, 2020), https://www.businessinsider.com/coronavirus-epa-stops-enforcing-environmental-protection-rules-2020-3.

[4] Ledyard King, EPA suspends some public health monitoring and enforcement because of the coronavirus crisis, USA Today (Mar. 27, 2020), https://www.usatoday.com/story/news/politics/2020/03/27/coronavirus-crisis-epa-eases-key-permitting-enforcement-oversight/2925990001/.

[5] See Scher.

[6] Press Release, Environmental Protection Agency, EPA Announces Enforcement Discretion Policy for COVID-19 Pandemic, EPA.GOV (Mar. 26, 2020), https://www.epa.gov/newsreleases/epa-announces-enforcement-discretion-policy-covid-19-pandemic-0.

[7] Susanne Rust et al., Citing coronavirus, EPA suspends enforcement of environmental laws, L.A. Times (Mar. 27, 2020), https://www.latimes.com/environment/story/2020-03-27/epa-suspends-enforcement-amid-coronavirus.

[8] See Scher.

[9] See King.

[10] Susanne Rust et al., Citing coronavirus, EPA suspends enforcement of environmental laws, L.A. Times (Mar. 27, 2020), https://www.latimes.com/environment/story/2020-03-27/epa-suspends-enforcement-amid-coronavirus.

[11] Id.

[12] Id.

[13] Id.

Wicy Wang, CLS ’21

The story of the proposed $26 billion merger between T-Mobile and Sprint began last year, when the Federal Communications Commission and the U.S. Justice Department approved the deal contingent, in part, on the divestiture of certain assets.[1] However, there remained concerns about the merger, which would combine the third- and fourth-largest wireless carriers in the U.S. into an expansive corporation servicing approximately 100 million customers.[2] In June 2019, ten attorney generals, including the New York State Attorney General, filed suit in the Southern District of New York to enjoin the merger from taking place under Section 7 of the Clayton Act; they argued that the increased market concentration would result in “diminished competition, higher prices, and reduced quality and innovation.”[3]

On February 11, the S.D.N.Y. dismissed the case, allowing the merger between Sprint and T-Mobile to move forward.[4] The court did not agree that “the New T-Mobile would pursue anticompetitive behavior that . . . will yield higher prices or lower quality for wireless telecommunications services.”[5] One important factor the court noted was that T-Mobile and Sprint have agreed to keep prices steady for three years following the merger; as part of its antitrust analysis, the court was also skeptical that, absent the merger, Sprint’s financial situation would have allowed it to remain competitive in the telecommunications industry.[6]

From an antitrust perspective, the court primarily looked at two ways in which such a merger would be anticompetitive.[7] Firstly, the court dismissed the possibility that the merger would enable “coordinating effects,” where rival firms work together to set high prices that harm consumers. The court gave particular credence to the argument that in the telecommunications industry, firms compete on other dimensions than price such as capacity advantages.[8] Secondly, the court also discounted “unilateral effects” resulting from a general lack of competition, citing AT&T and Verizon as other active competitors in the telecommunications space.[9]

The merger still has its fair share of skeptics. FCC Jessica Rosenworcel argued last year that the promise by T-Mobile not to raise prices is rendered meaningless by the existence of loopholes and surcharges, and that such a promise might not be enforced by the FCC anyway.[10] Furthermore, the telecommunications industry is notorious for its lack of competition at the local level, because of how closely service is tied to geographic coverage; in the New York City metropolitan area, for instance, “the combined company’s share of subscribers would exceed 50%.”[11] And unsurprisingly, the merger is taking place against a backdrop of general industry consolidation;[12] in 2018, AT&T completed its $85.4 billion merger with Time Warner.

What might explain the court’s decision to dismiss this case is a history of generally conservative judicial approaches to antitrust cases, which are traditionally left to federal agency review. In its decision, the court also expressed a fundamental ambivalence towards deciding antitrust cases, noting that the presentation of expert witnesses on both sides was not only unhelpful but counterproductive, and that “conflicting engineering, economic, and scholarly business models . . . essentially cancel each other out as helpful evidence.”[13] Later on in the opinion, the court argues that without discounting economic models, “more traditional judicial methods” are a better approach.[14] By relying on “traditional judicial methods,” however, the court does turn away from data-driven analyses by experts, relying instead on statements from executives in making its decision.[15]

For now, the New York Attorney General has declined to appeal the case.[16] The merger is moving forward, pending approval from the California Public Utility Commission,[17] although it is unclear at the moment how the state public utility commission’s decision would affect the merger.[18] Regardless of whether the merger eventually takes place, this particular case provides an interesting case of state attorney generals asserting their interest under federal antitrust law.

[1] Makena Kelly, T-Mobile and Sprint Merger Approved By Justice Department, The Verge (July 26, 2019) https://www.theverge.com/2019/7/26/6646158/t-mobile-sprint-merger-justice-department-approves-26-billion-fcc.

[2] Edmund Lee, T-Mobile and Sprint Are Cleared to Merge as the Big Get Bigger, The New York Times (Feb. 11, 2020) https://www.nytimes.com/2020/02/11/business/media/t-mobile-sprint-merger.html.

[3] Redacted Third Amended Complaint, New York v. Deutsche Telekom AG, No. 1:19-cv-5434 (S.D.N.Y. Sept. 18, 2019).

[4] New York v. Deutsche Telekom AG, 2020 WL 635499 (S.D.N.Y. 2020).

[5] Id. at 4.

[6] Id.

[7] Id. at 39.

[8] Id. at 41.

[9] Id. at 43.

[10] Jessica Rosenworcel, The T-Mobile and Sprint Merger Will Only Hurt Consumers, The Atlantic (Oct. 16, 2019) https://www.theatlantic.com/ideas/archive/2019/10/t-mobile-and-sprints-merger-will-hurt-consumers/599245.

[11] Redacted Third Amended Complaint, New York v. Deutsche Telekom AG, No. 1:19-cv-5434 (S.D.N.Y. Sept. 18, 2019).

[12] Edmund Lee, T-Mobile and Sprint Are Cleared to Merge as the Big Get Bigger, The New York Times, (Feb. 11, 2020) https://www.nytimes.com/2020/02/11/business/media/t-mobile-sprint-merger.html.

[13] New York v. Deutsche Telekom AG, 2020 WL 635499 at 2 (S.D.N.Y. 2020).

[14] Id. at 44.

[15] Id.

[16] Jennifer Ablan and Ortenca Aliaj, New York Decides Against T-Mobile-Sprint Merger Appeal, Financial Times (Feb. 16, 2020) https://www.ft.com/content/66fba848-50ed-11ea-90ad-25e377c0ee1f.

[17] Jon Reid and Victoria Graham, Sprint, T-Mobile Still Need OK From California Utility Regulator, Bloomberg Law (Feb. 11, 2020) https://news.bloomberglaw.com/tech-and-telecom-law/sprint-t-mobile-still-need-ok-from-california-utility-regulator.

[18] Sarah Krouse, California Regulators a Potential Obstacle to T-Mobile, Sprint Merger (Jan. 26, 2020), https://www.wsj.com/articles/california-regulators-a-potential-obstacle-to-t-mobile-sprint-merger-11580063967.

Zhihao (Amy) Zhang, CLS ’21

The Second Circuit recently grappled with the scope of a landlord’s duty to intervene in tenant-on-tenant racial harassment under the Fair Housing Act (“FHA”), and the decision may have significant consequences for the future of landlord-tenant litigation.

In Francis v. Kings Park Manor, Inc., the plaintiff, after moving into an apartment complex owned by the defendants, soon became the victim of “a brazen and relentless campaign of racial harassment, abuse, and threats.”[1] While the plaintiff sought help from the police several times and reported the incidents to his landlord, the landlord failed to respond to his complaints, let alone taking any substantive steps to resolve the conflict or evict the harasser from the property. The harasser eventually pled guilty to harassment charges, and the plaintiff subsequently filed this suit against his landlord.

One of the grounds on which the harassed tenant sued his landlord is alleged violation of section 3604 (b) of the FHA[2] and section 3617 of the Act.[3] The plaintiff argued that in failing to remedy a racially hostile housing environment, the landlord’s behavior amounted to intentional discrimination prohibited by the FHA. While the district court dismissed the plaintiff’s FHA claims, the Second Circuit took a different position and reinstated the claims. Noting that the defendants were “actually aware” of the discriminatory behavior and had a history of “[intervening] against other tenants regarding non‐race‐related violations of their leases or of the law,” the Second Circuit concluded that the landlord’s conduct evinced intentional discrimination that is cognizable under the FHA.[4]

In reinstating the plaintiff’s claims, the Second Circuit joined the Seventh Circuit in deeming landlords liable when they fail to intervene in situations concerning tenant-on-tenant harassment on the basis of a protected class.[5] This ruling can lead to a significant increase in litigation attempting to hold landlords accountable even when they themselves are not the primary perpetrators of discrimination. Tenants under the jurisdiction of other circuit courts may cite to this opinion and urge their courts to follow suit.

There is, however, some concern with the actual impact of the Second Circuit’s decision and the legal uncertainty it may create. First, since the court determines that landlord liability in the racial discrimination context can be predicated on a finding of past interventions by the landlord in non-race-related disputes, this may create perverse incentives for landlords to stop addressing all disputes going forward, thus diminishing the quality of housing services. Furthermore, as Judge Livingston points out in her dissent, the court provides no “parameters of the necessary intervention.”[6] The question remains as to what responses landlords must produce to tenants’ complaints in order to avoid a finding of intentional discriminatory practice. In the face of mounting threats of litigation, they may well pass along the burden to those seeking protection under the FHA through more onerous housing costs, further rendering housing inaccessible to those who need it the most.[7]

[1] 944 F.3d 370, 373 (2d Cir. 2019).

[2] Section 3604(b) of the FHA makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(b).

[3] “It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the Act].” 42 U.S.C. § 3617.

[4] Francis, 944 F.3d at 379.

[5] Joseph William Singer, Landlord may be liable for fair housing violation if no response to one tenant’s racial harassment of another, Property Law Developments (Dec. 7, 2019), https://scholar.harvard.edu/jsinger/blog/landlord-may-be-liable-fair-housing-violation-if-no-response-one-tenants-racial.

[6] Id. at 395 (Livingston, J., dissenting).

[7] Id. (cautioning that “this decision . . . is but another stumble along the path to ever more litigation that increases housing costs for those who rent, renders affordable housing more scarce, and risks the loss of housing for some of the most vulnerable among us”).

Susannah Price, CLS ’21

On January 30, 2020, the Ninth Circuit issued a decision that may usher intense scrutiny of universities’ past and present practices for addressing sexual misconduct on their campuses.

In Karasek v. Regents of the University of California,[1] three former students who were sexually assaulted while undergraduates at the University of California, Berkeley (Berkeley), sued their alma mater, asserting two theories of liability under Title IX of the Education Amendments Act of 1972 (Title IX).[2]  First, they alleged that Berkeley failed to adequately investigate and respond to their individual reports of sexual assault. Second, they alleged that Berkeley cultivated “a general policy of deliberate indifference to sexual misconduct” against female students that created a “sexually hostile environment” and increased the risk that they would be sexually assaulted.[3] This latter theory of deliberate indifference is known as a “pre-assault claim” due to its reliance on events that occur before the assault in question.[4] The Ninth Circuit affirmed the district court’s judgment in favor of Berkeley with respect to the plaintiffs’ individual assaults, but vacated its dismissal of the pre-assault claim and remanded for further proceedings.[5]

In holding that pre-assault deliberate indifference is a cognizable theory of Title IX liability, the Court explained that a school need not have had actual knowledge of a specific assault for liability to attach when that school’s official policy violates Title IX.[6] Thus, rather than zeroing in on a school’s response to a particular report of sexual assault, pre-assault claims allege that a school’s policies and practices, in general, contribute to the occurrence of sexual misconduct by failing to adequately prevent it.[7] According to the Court, a pre-assault claim should not be dismissed if the plaintiff plausibly alleges that: “(1) a school maintained a policy of deliberate indifference to reports of sexual misconduct, (2) which created a heightened risk of sexual harassment (3) in a context subject to the school’s control, and (4) the plaintiff was harassed as a result.”[8] The Court did not provide further guidance as to what conditions would satisfy this standard, but rather left it to the district court to determine on remand.[9]

Despite the Court’s reassurances that universities are not required to “purge” their campuses of all sexual misconduct or “guarantee[] the good behavior of [their] students,” Karasek has serious implications for universities in the Ninth Circuit. Some predict that this decision will cause previously adjudicated Title IX complaints to face more exacting inspection.[10] For example, since Karasek establishes a framework that focuses on policies prior to the occurrence of sexual assault, plaintiffs bringing pre-assault claims will likely seek to introduce the details of past complaints as relevant to proving their own cases.[11] Attorneys representing educational institutions worry that this, in turn, may raise privacy concerns and increase the scope and cost of discovery.[12]

While the precise outcome remains to be determined, this ruling gives new hope to victims of sexual assault on college campuses.[13] Karasek is expected to incentivize Berkeley and other universities across the Ninth Circuit to ensure prompt and effective responses to future allegations, provide preventative training opportunities for students, and assess the overall climate of their campuses with respect to sexual misconduct.[14]

[1] Karasek v. Regents of the Univ. of Cal., 2020 U.S. App. LEXIS 2933, *1 (9th Cir. Jan. 30, 2020).

[2] Id. at *4.

[3] Id.

[4] Id.

[5] Id.

[6] Id. at *38-39.

[7] Id.

[8] Id. at *39-40.

[9] Id. at *45.

[10] Susan D. Friedfel and Jason A. Ross, University’s Handling of Students’ Pre-Assault Complaints of Sexual Misconduct Open to Title IX Claim, Nat’l L. Rev. (Feb. 14, 2020), https://www.natlawreview.com/article/university-s-handling-students-pre-assault-complaints-sexual-misconduct-open-to.

[11] Id.

[12] Id.

[13] See Press Release, The Zalkin Law Firm, The Zalkin Law Firm Secures Landmark Ruling in Title IX Sexual Assault Lawsuit Against University of California Berkeley (Feb. 3, 2020), https://www.pr.com/press-release/804817.

[14] See id. See also Paige Hoster Good, Across Campus: Title IX ‘Pre-Assault’ Claims May Increase Liability for Universities, McAfee & Taft (Feb. 24, 2020), https://www.jdsupra.com/legalnews/across-campus-title-ix-pre-assault-97179/.

Noah Bunnell, CLS ’21

Amid a flurry of increasingly aggressive immigration actions by the Trump administration, a number of lawsuits challenging the new DHS “public charge” rule, governing the admissibility of immigrants into the United States, continue to wend their way through the courts.

On January 27, 2020, the Supreme Court granted a stay pending appeal of a preliminary injunction issued by a federal district court in New York, lifting the nationwide injunction — except in Illinois, where a statewide injunction remained in place — and allowing the “public charge” rule to go into effect.^[1] But on February 21, 2020, by way of another 5-4 vote, the Court granted an additional stay with respect to the State of Illinois,^[2] giving leave to U.S. Citizenship and Immigration Services (USCIS) to begin implementing the final rule in all 50 states on February 24, 2020.^[3]

What’s at stake here, most immediately, is immigrants’ eligibility for permanent legal status. Under the Immigration and Nationality Act, an individual seeking permanent resident status is inadmissible if he, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”^[4] The new rule — which defines “public charge” as an “alien who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months)”^[5] — amounts to a significant expansion of DHS’s previous interpretation of the statute.

For the past 20 years, the federal government defined “public charge” as someone who had become or was likely to become “primarily dependent on the government for subsistence.”^[6] The guidance issued in 1999 “specified that the federal government would not consider use of Medicaid, CHIP, or other supportive programs in public charge determinations, with the exception of use of Medicaid for long-term institutional care.”^[7] DHS’s redefinition now permits USCIS to deny residency to anyone it deems likely to receive any of a wide range of cash or non-cash benefits.^[8]

In their challenge to the rule, three states, New York City, and a number of immigrant rights groups have argued, among other things, that the administration’s interpretation of the rule is in excess of its statutory jurisdiction and arbitrary and capricious under § 706(2) of the Administrative Procedure Act.^[9] It remains to be seen whether the Court will end up facing any of these issues on the merits, but the 5-4 grants of stay in Department of Homeland Security v. New York and Wolf v. Cook County, Illinois surfaced broader doctrinal issues that continue to agitate some members of the Court.

Along with the January 27 grant of stay, Justice Gorsuch^[10] filed a concurring opinion, joined by Justice Thomas, in which he decried the “increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.”^[11]

Relying on a 2017 law review article by Samuel Bray,^[12] Gorsuch argued that nationwide injunctions are constitutionally suspect,^[13] expressing hope that the Court “might at an appropriate juncture take up some of the underlying equitable and constitutional questions” raised by their use.^[14] Echoing Bray, Gorsuch also contended that as a matter of judicial policy such injunctions are “patently unworkable, sowing chaos for litigants, the government, courts, and all those affected.”^[15] Specifically, Gorsuch argued, they facilitate forum shopping,^[16] increase the risk of conflicting injunctions,^[17] prevent legal questions from percolating up through multiple circuits,^[18] and “tend to force judges into making rushed, high-stakes, low-information decisions.”^[19]

The other side of the argument, left largely untouched by Gorsuch’s concurring opinion, counsels that universal injunctions play an important role in “preventing widespread harm.”^[20] Forcing plaintiffs to wait for a lawsuit to reach the Supreme Court before an injunction can be issued ignores the fundamental reality that injunctions are issued to prevent “irreparable harm.” And in the immigration context in particular, nationwide injunctions may be the only means of affording complete relief to plaintiffs.^[21] The alternative — permitting federal courts only to grant injunctions of limited geographical scope — would potentially create massive administrability problems, rendering agency rules enforceable in one place and unenforceable in another.^[22]

Sounding a very different note to Gorsuch in her dissent from the Court’s February 21 grant of stay, Justice Sotomayor took aim at the government’s increasing willingness to seek — and the Court’s increasing willingness to grant — stays pending appeal that overrule lower court injunctions.^[23] The Court has historically recognized that such stays represent “extraordinary relief,” and should only be offered where a party can demonstrate a likelihood of irreparable harm.^[24] Recently, however, as Sotomayor’s dissenting opinion emphasized, the government has made an “unprecedented number of requests for emergency or extraordinary relief from the Justices.”^[25]

Indeed, over the first two and a half years of the Trump administration, the DOJ filed over 20 applications for stays at the Supreme Court, compared to eight total applications during the prior 16 years under Bush and Obama.^[26] And, as Sotomayor argued, the Court has recently granted these requests in a number of high-profile immigration cases, despite being forced “to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument.”^[27]

To hear and grant an application for stay, in Sotomayor’s view — particularly here, with the Seventh Circuit scheduled to hear oral argument on February 26, 2020 — frustrates the ability of lower courts to fully consider these questions and asks the Court to review them prematurely. An injunction preserving “a 20-year status quo” immigration policy in one state, on the other hand, hardly rises to the level of irreparable harm.^[28]

Whether the Justices will have occasion to consider these issues squarely anytime soon remains uncertain, but as federal courts continue to issue nationwide injunctions and as the DOJ continues to seek emergency stays, the Court may not be able to refrain from addressing these questions for long.

^[1] Department of Homeland Security v. New York, 140 S.Ct. 599 (mem.) (2020).

^[2] Wolf v. Cook County, Illinois, No. 19A905, 2020 WL 858799 (mem.) (Feb. 21, 2020).

^[3] Press Release, U.S. Citizenship and Immigration Services, USCIS Announces Public Charge Rule Implementation Following Supreme Court Stay of Nationwide Injunctions (Jan. 30, 2020), https://www.uscis.gov/news/news-releases/uscis-announces-public-charge-rule-implementation-following-supreme-court-stay-nationwide-injunctions.

^[4] Immigration and Nationality Act § 212(a)(4), 8 U.S.C. § 1182(a)(4)(A) (2012). In making that determination, the statute requires the consular officer or Attorney General to consider the applicant’s age, health, family status, assets, resources, financial status, education, and skills. §1182(a)(4)(B). The statute does not define “public charge.”

^[5] Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41292, 41295 (Aug. 14, 2019) (codified at 28 C.F.R. Pts. 103, 212, 213, 214, 245, 248).

^[6] Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689 (Mar. 26, 1999).

^[7] Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/#endnote_link_417492-5.

^[8] The rule “defines public benefits to include federal, state, or local cash benefit programs for income maintenance and certain health, nutrition, and housing programs that were previously excluded from public charge determinations, including non-emergency Medicaid for non-pregnant adults, the Supplemental Nutrition Assistance Program (SNAP), and several housing programs.” Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/#endnote_link_417492-5.

^[9] Complaint at 112–114, Make the Road New York v. Cuccinelli, 2019 WL 5484638 (S.D.N.Y. 2019) (19 Civ. 7993 (GBD)).

^[10] Notably, Justice Gorsuch’s doctrinal opposition to the modern administrative state stands in some tension with his hostility to the nationwide injunction — the former position tending to empower federal judges and the latter tending to restrain them. For Gorsuch’s views on the administrative state, see, e.g., Kisor v. Wilkie, 139 S.Ct. 2400, 2446 n.114 (2019) (Gorsuch, J., concurring in judgment) (“To be sure, under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), we sometimes defer to an agency’s construction of a statute. But there are serious questions, too, about whether that doctrine comports with the APA and the Constitution.” (emphasis in original)).

^[11] Department of Homeland Security v. New York, 140 S.Ct. 599, 600 (2020). For more on the distinction between “nationwide” and “universal” injunctions, see Amanda Frost, In Defense of Nationwide Injunctions, 93 NYU L. Rev. 1065, 1071 (2018) (“[N]o one denies that district courts have the power to enjoin a defendant’s conduct anywhere in the nation (indeed, the world) as it relates to the plaintiff; rather, the dispute is about who can be included in the scope of the injunction, not where the injunction applies or is enforced. For that reason, some scholars refer to injunctions that bar the defendant from taking action against nonparties as ‘universal injunctions,’ ‘global injunctions,’ or ‘defendant-oriented injunctions.’”) (citations omitted)).

^[12] Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017). For a response to Bray, see Spencer E. Amdur & David Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. 49 (2017).

^[13] Department of Homeland Security v. New York, 140 S.Ct. 599, 600 (2020) (Gorsuch, J., concurring in the grant of stay) (When a district court orders “the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III.”).

^[14] Id. at 601.

^[15] Id. at 600.

^[16] Id. at 601 (“Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide.”).

^[17] Id. at 600.

^[18] Id. (“The traditional system of lower courts issuing interlocutory relief limited to the parties at hand . . . encourages multiple judges and multiple circuits to weigh in only after careful deliberation, a process that permits the airing of competing views that aids this Court’s own decisionmaking process.”).

^[19] Id.

^[20] Spencer E. Amdur & David Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. 49, 50 (2017) (“Indeed, the Supreme Court has recently suggested that sometimes ‘the equitable balance’ in a case will favor extending injunctive relief to ‘parties similarly situated to’ the plaintiffs” (citing Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam)).

^[21] Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065, 1090–94 (2018).

^[22] Id. at 1098–1101.

^[23] Wolf v. Cook County, Illinois, No. 19A905, 2020 WL 858799 (Feb. 21, 2020) (Sotomayor, J., dissenting from grant of stay); see also Barr v. East Bay Sanctuary Covenant, 140 S.Ct. 3, 4 (2019) (Sotomayor, J., dissenting from grant of stay) (“Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively.”).

^[24] Williams v. Zbaraz, 442 U.S. 1309, 1316 (1979) (Stevens, J., in chambers).

^[25] Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 124 (2018). Vladeck argues that the uptick in grants of stay can be attributed less to a rise in nationwide injunctions than to a shift in the Court’s conception of irreparable harm. “[A] majority of the Justices now appear to believe that the government suffers an irreparable injury militating in favor of emergency relief whenever a statute or policy is enjoined by a lower court, regardless of the actual impact of the lower court’s ruling — or the harm the statute or policy would cause if allowed to go into effect.” Id. at 126.

^[26] Id. at 125.

^[27] Wolf, 2020 WL 858799, at *3.

^[28] Id.

Taylor Larson, CLS ’21

The Third Circuit ruled last month that the Immigration and Nationality Act (INA) does not bar district courts from hearing non-removal claims from detained immigrants, priming a Supreme Court showdown of judicial reviewability against INA limitations on courts.

In E.O.H.C. v. DHS Secretary,[1] a detained Guatemalan father and daughter who traveled through Tijuana, Mexico to seek asylum in the United States challenged the government’s attempt to send them to Tijuana pending the appeal of their removal orders. Detainees usually remain in the U.S. throughout their removal proceedings,[2] but the government argued the recently enacted Migrant Protection Protocols (MPP, or “Remain in Mexico” policy) allows it to send the two from holding in a Pennsylvania detention center to Tijuana before the Board of Immigration Appeals decides their removal appeal.[3] The father and daughter argued in district court that, among other claims, sending them to Tijuana would endanger a minor (the daughter) in violation of the Flores settlement.[4]

The district court ruled it had no subject-matter jurisdiction to hear their claims.[5] It held § 1252(b)(9) of the INA blocks districts courts from hearing claims “arising from any action taken or proceeding brought to remove [aliens.]”[6] Appellants must bring their claims through all levels of immigration administrative rulings, and only then can appeal to a circuit Court of Appeals; federal district courts rarely have any role in the process.[7]

The Third Circuit Court of Appeals disagreed.[8] It found the INA only bars district courts from claims on final removal orders, not those unrelated to final removal. The circuit used a “now or never” principle to distinguish removal claims from non-removal ones. Any claim asking for relief that cannot be granted at the time of a final removal decision—relief that can only come when a plaintiff seeks it (now) or never at all—amounts to a now-or-never claim.[9] Such claims are not final removal claims, and therefore the INA does not block district courts from reviewing them.[10]

The Third Circuit found most of the appellants’ claims constituted now-or-never claims.[11] It held, for example, a court of appeals ruling that applying MPP to the appellants violated the Flores settlement, as it decides on their removal order, would provide no remedy: “[The appellants] allege that Tijuana is dangerous, so retuning them poses a grave danger. By the time there is a final order of removal to Guatemala . . . it will be too late to review or remedy their return to Mexico[.]”[12]

The ruling begs a Supreme Court decision to settle how far the INA limits judicial review. The Third Circuit relied on three-Justice pluralities in Supreme Court decisions, admitting the Court has left open what constitutes a removal action under § 1252(b)(9)[13] and inviting it to clarify. The Court has shown a recent willingness to address judicial review in immigration, such as deciding to hear Thuraissigiam v. DHS[14] this month, showing a return to 1252(b)(9) is more likely to happen now than never.

The Third Circuit sought to limit bans on judicial review of immigration agency decisions, and if the Supreme Court rules in a similar spirit, it could open the door to other challenges against the INA blocks on judicial review.

[1] E.O.H.C. v. Sec’y United States Dep’t of Homeland Sec., No. 19-2927, 2020 U.S. App. LEXIS 4628 (3d Cir. Feb. 13, 2020).

[2] Id. at 3.

[3] Id. at 4.

[4] Id. at 7.

[5] Id. at 10.

[6] 8 U.S.C. 1252(b)(9).

[7] No. 19-2927, 2020 U.S. App. LEXIS 4628, at 1.

[8] Id. at 40.

[9] Id. at 10.

[10] Id. at 13.

[11] Id. at 19-20.

[12] Id. at 19.

[13] No. 19-2927, 2020 U.S. App. LEXIS 4628, at 13-14, “[T]he Supreme Court has left open whether detention pending an asylum ruling counts as an ‘action taken . . . to remove an alien from the United States.’ See Jennings v. Rodriguez, 138 S. Ct. 830, 840 (2018) (plurality opinion). In any event, the removal proceedings are ‘proceedings brought to remove’ appellants from the United States to Guatemala.”; id. at 16, “The Justices largely reprised these positions in Nielsen v. Preap, 139 S. Ct. 954 (2019) . . . A three-Justice plurality repeated the Jennings plurality’s view that § 1252(b)(9) does not bar challenges to detention rather than removal.”

[14] Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 427 (2019) (cert. granted). The case involves an asylum seeker suing to appeal his deportation order, gained through an allegedly flawed credible fear interview, in a federal court, against an INA ban on judicial review.

Cortnay Cymrot, CLS ’21

The Supreme Court’s decision to deny a petition to review a recent Ninth Circuit ruling—affirming a blind man’s right to access Domino’s Pizza website and mobile app—opens the door for a flood of litigation targeting website and app accessibility.

In Robles v. Domino’s Pizza, the plaintiff alleged that, despite his use of common screen-reading software, he was unable to order food on Domino’s website and mobile app. He brought suit under the Americans with Disabilities Act (ADA), which requires that businesses serving as “places of public accommodation”—including restaurants—remove barriers to access for the disabled. Circuit courts are split on whether—and in what circumstances—the ADA applies to websites and mobile apps.[1]

Domino’s argued that, as the ADA does not explicitly address accessibility with regard to mobile apps and the internet, it applies only to physical spaces—not websites. The Ninth Circuit disagreed, focusing on the nexus between Domino’s website/app and its physical location to find the ADA violated. As the online inaccessibility impeded blind customers from accessing products sold at Dominos’ physical locations, the pizza chain fell short of federal disability requirements.

In declining to revisit the Ninth Circuit’s decision, the Supreme Court has put on alert all places of public accommodation that operate websites or mobile apps (read: the vast majority of such businesses).  The ruling is expected to cause these businesses to improve their website and app accessibility, ensuring they’re optimized to enable screen-reading software to read and vocalize all content. [2]

Disability advocates regard the Ninth Circuit’s decision—and the Supreme Court’s subsequent denial of the appeal—as a major win. As mobile apps and the internet are an increasingly integral part of the modern economy, a contrary decision threatened to further isolate the visually impaired (and others relying on accessibility tools).[3]

Yet some fear the decision will have a perverse impact on accessibility.[4] Many within the retail and restaurant industries filed amicus briefs backing Domino’s, stressing the “impossibility of guessing what accessibility means in the online environment.” The threat of litigation could lead such businesses to reduce or eliminate their online presence, rather than fronting the costs necessary to ensure full accessibility.

Federal courts have already seen an increasing number of lawsuits addressing website accessibility. Over 2200 such suits were filed in federal courts in 2018—nearly tripling the prior year’s figure.[5] The Ninth Circuit’s decision will likely give rise to an escalation of this trend, emboldening plaintiffs to bring suit against inaccessible online businesses on a much larger scale.

[1] Alexis Kramer, Supreme Court Won’t Hear Domino’s Pizza Website Access Dispute, Bloomberg Law (Oct. 7, 2019), https://news.bloomberglaw.com/tech-and-telecom-law/supreme-court-wont-hear-dominos-pizza-website-access-dispute.

[2] Steven Melendez, Domino’s Pizza Was Just Dealt a Supreme Court Blow That Could Reshape the ADA in the Digital Era, Fast Company (Oct. 7, 2019), https://www.fastcompany.com/90414147/dominos-pizza-dealt-scotus-blow-that-could-affect-ada.

[3] Richard Supple, Domino’s Wants to Slice Away at the Americans With Disabilities Act (Sept. 30, 2019), https://slate.com/technology/2019/09/supreme-court-dominos-web-accessibility-visually-impaired.html.

[4] Stephanie Condon, Supreme Court Lets Blind Man Sue Domino’s Over Website Accessibility, ZDNet (Oct. 7, 2019), https://www.zdnet.com/article/supreme-court-lets-blind-man-sue-dominos-over-website-accessibility.

[5] Tucker Higgins, Supreme Court Hands Victory to Blind Man Who Sued Domino’s Over Site Accessibility, CNBC (Oct. 7, 2019), https://www.cnbc.com/2019/10/07/dominos-supreme-court.html.

Abigail Kertzman, CLS ’21

On November 15, the District Court for the Northern District of Florida struck down a Florida election law mandating that candidates in the same party as the current Governor be listed first on ballots.[1] The challengers to the law claimed that this rule gave the Governor’s party (currently in Florida, Republicans) an unfair and unconstitutional advantage.

To analyze whether the law was in fact unconstitutional, the court applied the Anderson/Burdick standard which weighs the character and magnitude of the burden on the plaintiffs’ First and Fourteenth Amendment rights against the legitimacy and necessity of the interests the State expresses to justify the burden.[2] Under this framework, the Court then considers the magnitude of the burden in order to determine which level of scrutiny to apply.[3]

In assessing the Plaintiff’s injury, the court explored the existence and potential impact of the primacy effect – the theory that voters are more likely to vote for the first candidate on a ballot. Judge Mark E. Walker relied heavily on the testimony of two Plaintiff’s experts who testified that scholarship on ballot ordering indicates that a candidate listed first likely receives an advantage of three[4] to five[5] percentage points. The court noted that this may seem like a “relatively small percentage taken in isolation, but the records of Florida’s elections which are before this Court demonstrate it is more than the margin of victory or defeat in a great many elections.”[6] Accordingly, the court held that the law was discriminatory because it gave candidates “a statistically significant advantage in that election, conferred by the primacy effect; and it does so on the explicit basis of the candidates’ party affiliation.”[7]

In weighing the State’s interests to justify this burden, the court considered Florida’s expressed interests of ballot uniformity and preventing voter confusion.[8] While the court did agree that the State had some legitimate interests, it found that the evidence linking the current ballot ordering scheme to those interests was weak.[9] The court decided that the burdens imposed by this scheme merited a level of review between rational basis and strict scrutiny. The court held that Florida’s law did not satisfy this level of review, opining in dicta that it would not even hold up to rational-basis review, and thus found that the law violated the First and Fourteenth Amendments. [10] As Judge Walker wrote, “[i]n our democracy there are no head starts.”[11]

Florida Secretary of State Laurel Lee says that the State will comply with the order to devise a new rule for ordering candidates while seeking to appeal.[12]

Multiple states, including New York, have similar laws that now may face similar challenges.[13] Earlier in the month, Democratic organizations filed such challenges in Texas, Arizona, and Georgia – three states which have a similar history of close elections results as Florida.[14] While the results of any potential appeal remain to be seen, Democrats may see Judge Walker’s opinion as an open door to continue challenging state ballot rules that can be perceived as giving any slight advantage to one party.

[1] Jacobson. v. Lee, No. 4:18cv262-MW/CAS (N.D. Fla. Nov. 15, 2019).

[2] Id. at 27.

[3] Id. at 60.

[4] Id. at 39.

[5] Id. at 33.

[6] Id. at 48.

[7] Id. at 49.

[8] Id. at 51.

[9] Id. at 60.

[10] Id. at 64.

[11] Id. at 26.

[12] Lori Rozsa, Federal judge declares Florida ballots unconstitutional, orders change, Washington Post (Nov. 15, 2019), https://www.washingtonpost.com/politics/federal-judge-declares-florida-ballots-unconstitutional-orders-change/2019/11/15/0b91dc0a-0810-11ea-924a-28d87132c7ec_story.html.

[13] N.Y. Elec. Law § 7-116 (McKinney).

[14] Colby Itkowitz, Democrats sue three battleground states over law that GOP candidates’ names be listed first on ballot, Washington Post (Nov 1, 2019), https://www.washingtonpost.com/politics/democrats-sue-three-battleground-states-over-law-that-gop-candidates-names-be-listed-first-on-ballot/2019/11/01/b62c8f44-fcc0-11e9-8906-ab6b60de9124_story.html.

Lydia Turnage, CLS ’21

On November 12, a magistrate judge in the Western District of Pennsylvania ruled that a group of wheelchair users from Pittsburgh could move forward with their proposed class action against the ride-share company Uber for alleged violations of the Americans with Disabilities Act (ADA) despite Uber’s attempt to force arbitration on the issue.[1] The plaintiffs in this case were able to successfully navigate around the arbitration clause included in Uber’s terms and conditions of service by virtue of the fact that none of the plaintiffs have ever actually used or downloaded the Uber app.[2] In fact, this lack of use is central to their claim: namely, that downloading and using the Uber app would be “futile,” due to company’s alleged failure to provide sufficient access to wheelchair accessible vehicles.[3]

The plaintiffs in the Pennsylvania suit, like plaintiffs in similar actions brought against Uber as well as its competitor Lyft,[4] brought their claims under Title III of the ADA. Specifically, the plaintiffs allege that Uber is in violation of Section 12182 of the Act, which prohibits private entities that own or operate public accommodations from discriminating on the basis of disability[5], as well as Section 12184, which prohibits disability discrimination in regards to specified public transportation services provided by private entities.[6] The plaintiffs argue that under the ADA, “individuals…who rely on wheelchairs for mobility and thus also wheelchair accessible vehicles (“WAVs”) for transportation, are injured by [Uber’s] failure to provide any access to its on-demand ridesharing transportation service to disabled individuals requiring WAVs….”[7] While the Pennsylvania plaintiffs were successful in bypassing the arbitration clause and establishing Article III standing, they now face the much greater challenge of convincing the court that Uber is actually subject to ADA liability.

Recent federal court cases regarding Title III claims brought against Uber and Lyft highlight the challenges faced by plaintiffs seeking to enforce the ADA against ride-sharing apps and other companies operating in the sharing economy. These companies—including Uber, Lyft, and Airbnb—do not operate as actual service providers, but rather serve to facilitate transactions between users and independent providers in ways intended to “mak[e] the transaction easy, possible, and safe.”[8] While this business model is good for people looking for convenient app-based services or side hustles, it has proven detrimental to individuals with disabilities who face the double disadvantage of being denied both accessible services and ADA protections.

Title III of the ADA requires that businesses open to the public take reasonable steps to ensure that their goods and services are accessible to individuals with disabilities.[9] Importantly, however, the ADA doesn’t reach private homes or private cars, which makes it difficult to hold home- and rise-share companies liable for widespread barriers to accessibility.[10] There is also a significant circuit split on the question of whether the ADA applies to internet- or app-based companies without physical locations.[11] These issues have allowed app-based companies like Uber, Lyft, and Airbnb to argue that they are primarily technology companies that do not operate public accommodations within the meaning Title III.[12] Lyft even went so far as to argue in federal court earlier this year that “it is not in the transportation business.”[13] While some courts have allowed plaintiffs to survive motions to dismiss on the basis that they have stated plausible claims of ADA liability,[14] it is far from clear whether courts will actually take the step of defining these companies as public accommodations under Title III.

Companies like Uber, Lyft, and Airbnb have so far benefitted from the regulatory grey area created by the advent of the sharing economy, skirting ADA liability by relying on definitions for covered businesses that were written in a pre-internet world. Because individuals with disabilities make up a relatively small percentage of their users, discrimination is likely to continue without pressure from Congress or the courts. As ongoing litigation like the class action in Pennsylvania demonstrates, the time has come for the law to catch up with the realities of modern business practices if the ADA is to live up to its promise of equal access for all.

[1] O’Hanlon et al. v. Uber Technologies, Inc. et al., Civil Action No. 2:19-cv-00675, U.S. Dist. LEXIS 196029 (W.D. Pa. Nov. 12, 2019)

[2] Id. at *3.

[3] Id.

[4] Plaintiffs brought similar claims in Lowell v. Lyft, Inc., 352 F. Supp. 3d 248 (S.D.N.Y. Nov. 29, 2018), and Namisnak v. Uber Techs., 2018 U.S. Dist. LEXIS 221054 (Apr. 13 2018).

[5] 42 U.S.C. § 12182 provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

[6] 42 U.S.C. § 12184 provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce.”

[7] O’Hanlon at *2.

[8] Bernard Marr. The Sharing Economy: What It Is, Examples, And How Big Data, Platforms and Algorithms Fuel It. Forbes, (Oct. 21, 2016) https://www.forbes.com/sites/bernardmarr/2016/10/21/the-sharing-economy-what-it-is-examples-and-how-big-data-platforms-and-algorithms-fuel/#e4ce6d77c5af.

[9] 42 U.S.C. §12181 et. seq.

[10] Michael Byrne. New Study Quantifies Airbnb’s Widespread Exclusion of Disabled Guests. Vice, (Jun. 5, 2017) https://www.vice.com/en_us/article/8x9nx5/new-study-quantifies-airbnbs-widespread-exclusion-of-disabled-guests.

[11] See Del-Orden v. Bonobos, Inc., 2017 U.S. Dist. LEXIS 209251 at *14 (S.D.N.Y. Sec. 20, 2017).

[12] Helen Christophi. Jude Advances Men’s ADA Complaint Against Uber. Courthouse News Service, (Mar. 1, 2018) https://www.courthousenews.com/judge-advances-mens-ada-complaint-against-uber/; Melissa Locker. Lyft’s Response to ADA Lawsuit: Sorry, we’re “not in the transportation business.” FastCompany, (May 3, 2019) https://www.fastcompany.com/90343921/lyft-claims-its-not-a-transportation-company-to-avoid-ada-compliance.

[13] Locker, supra note 12.

[14] See Nat’l Fedn. of the Blind of Cal. v. Uber Techs., Inc., 103 F. Supp. 3d 1073 (Apr. 17, 2015), Ramos v. Uber Tech., Inc., 2015 WL 758087 (W.D. Tex. Feb. 20, 2015)

David Berman, CLS ’21

Over the past few years, state and private plaintiffs alike brought lawsuits alleging that federal student loan servicers misled borrowers in violation of state consumer protection laws.[1] These lawsuits now confront the problem of federal preemption: the Higher Education Act of 1965 (“HEA”) forbids states from layering disclosure requirements on “[l]oans made, insured, or guaranteed pursuant to a program authorized by title VI of the Higher Education Act.”[2] Because student borrowers in these cases have taken loans originated or guaranteed by the Department of Education (“DOE”), preemption by the HEA looms.

For plaintiffs, the stakes of federal preemption are high. The HEA does not offer a private right of action,[3] and the DOE has resisted the Consumer Financial Protection Bureau’s efforts to hold student loan servicers accountable.[4] Foreclosing state law remedies would limit student borrowers’ ability to recover at all.[5]

Nelson v. Great Lakes Educational Loan Services, Inc.,[6] a recent ruling by the Seventh Circuit, provides some clarity and hope to student borrowers seeking a remedy under state law. The plaintiff, Nicole Nelson, claims that her student loan servicer, Great Lakes Educational Loan Services (“Great Lakes”), held itself out as employing student loan “experts,” and encouraged its struggling borrowers to reach out for assistance.[7] Nelson called her student loan servicer, but claims that she was steered towards the most profitable options for Great Lakes, to her detriment.[8] Nelson brought suit alleging that Great Lakes violated the Illinois Consumer Fraud and Deceptive Business Practices Act, as well as Illinois common law.[9]

The Seventh Circuit found that the HEA does not expressly preempt Nelson’s state law claims because Great Lakes made inaccurate, voluntary statements. The Court distinguished between those statements compelled by the HEA, and those that are not. State law cannot interfere with HEA-required disclosure, so a case brought under a theory of fraudulent non-disclosure, implying any duty to provide additional information, is expressly preempted.[10] Nelson’s claims, however, relate to affirmative misrepresentation falling outside of the HEA’s requirements.[11] The Seventh Circuit panel agreed that § 1098g does not extend to misrepresentation in counseling, “where Great Lakes could have avoided liability under state law by remaining silent (or telling the truth) on certain topics.”[12] The Seventh Circuit also quickly dispensed with claims of conflict preemption[13] and field preemption,[14] before remanding for further proceedings.

Nelson has broad implications for future student loan litigation. Plaintiffs and amici cited the case in briefs to the Third Circuit[15] and oral arguments before the Eleventh Circuit,[16] both of which are actively considering whether the HEA preempts state law claims. A district court cited the case favorably in allowing private plaintiffs to proceed with state law claims.[17] Nelson is not a panacea for plaintiffs: the decision still preempts nondisclosure.[18] Even though the dust has yet to settle on this issue,[19] borrowers have reason to hope that they can hold student servicers accountable with state and common law claims.

[1] See, e.g., Complaint, New York v. Pa. Higher Educ. Assistance Agency, No. 19-cv-9155 (S.D.N.Y. Oct. 3, 2019); Complaint, Hyland v. Navient Corp., No. 17-2-01115-1 (S.D.N.Y. Oct. 3, 2018); Complaint, Mississippi v. Navient Corp., No. G2108-98203 (Miss. Ch. Ct., July 17, 2018); Complaint, California v. Navient Corp, No. CGC-18-567732, (Cal. Super. Ct., Jun. 29, 2018); Complaint, Massachusetts v. Pa. Higher Educ. Assistance Agency, No. 1784-CV-026282 (Ma. Sup. Ct. Feb. 28, 2018); Complaint, Pennsylvania v. Navient Corp., No. 17-CV-01814 (M.D. Pa. Oct. 5, 2017); Complaint, Illinois v. Navient Corp., No. 2017CH00761 (Ill. Cir. Ct. Jan. 18, 2017); Complaint, Washington v. Navient Corp., No. 17-2-01115-1 (Wash. Super. Ct. Jan. 18, 2017).

[2] 20 U.S.C. § 1098g.

[3] Thomas M. Cooley Law Sch. v. Am. Bar Ass’n, 459 F.3d 705, 710 (6th Cir. 2006).

[4] Eric Levitz, Trump’s Student Debt Policies are Mind-bogglingly Corrupt, N.Y. Mag. Intelligencer (Aug. 28, 2018), http://nymag.com/intelligencer/2018/08/cfpbs-student-loan-watchdog-resigns-in-protest-of-trump.html; Andrew Kreighbaum, Education Dept. Ends Partnership with CFPB, Inside Higher Ed (Sept. 5, 2017) https://www.insidehighered.com/news/2017/09/05/education-dept-rebukes-cfpb-overreach-kills-information-sharing-agreement.

[5] Brief for Ctr. for Responsible Lending and U.S. Pub. Interest Research Grp, Inc. as Amici Curae in Support of Appellant Nicole D. Nelson, Urging Reversal at 24, Nelson v. Great Lakes Educ. Loan Services, Inc., 928 F.3d 639 (7th Cir. July 2, 2018) (No. 18-1531).

[6] 928 F.3d 639 (7th Cir. 2019).

[7] Complaint at 8, Nelson v. Great Lakes Educ. Loan Services, Inc., 928 F.3d 639 (7th Cir. Feb. 21, 2017) (No. 18-1531).

[8] Id. at 13. (claiming that alternative options “would have likely allowed Plaintiff a $0.00 or extremely low monthly payment. . .”)

[9] Id. at 2-3.

[10] Nelson, 928 F.3d at 649.

[11] Id.

[12] Id. at 650.

[13] Id. at 651.

[14] Id. at 652.

[15] Brief for Appellee at 40, Pennsylvania v. Navient Corp., (No. 19-2116), 2019 WL 4013792 (3d Cir. Aug. 22, 2019); Brief for States of New York et al. as Amici Curae Supporting Appellee at 22, Pennsylvania v. Navient Corp., (No. 19-2116), 2019 WL 4139130 (3d Cir. Aug. 29, 2019); Brief for Amicus Curae the Am. Fed. of Teachers in Support of Plaintiff-Appellee and Urging Affirmance at 22, Pennsylvania v. Navient Corp., (No. 19-2116), 2019 WL 4139129 (3d Cir. Aug. 29, 2019).

[16] Oral Argument at 2:04, Lawson-Ross v. Great Lakes Educ. Loan Services, Inc., No. 18-14490 (11th Cir. Sept. 10, 2019), http://www.ca11.uscourts.gov/oral-argument-recordings?title=&field_oar_case_name_value=lawson-ross&field_oral_argument_date_value%5Bvalue%5D%5Byear%5D=&field_oral_argument_date_value%5Bvalue%5D%5Bmonth%5D=.

[17] Hyland v. Navient Corp., No. 18cv9031 (DLC), 2019 WL 2918238 at *6 (S.D.N.Y. July 8, 2019).

[18] Adam Minsky, This Big Court Decision May Help Student Loan Borrowers, Forbes (Oct. 22, 2019), https://www.forbes.com/sites/adamminsky/2019/10/22/this-big-court-decision-may-help-student-loan-borrowers/#694149003188.

[19] Andrew Keshner, Student-Loan Servicer Can’t Use Federal Law to Avoid Lawsuit Over Alleged Bad Advice, MarketWatch (July 2, 2019), https://www.marketwatch.com/story/student-loan-servicer-cant-use-federal-law-to-avoid-lawsuit-over-alleged-bad-advice-2019-07-02 (“Professor David Rubenstein of the Washburn University School of Law said the ruling could bring the clash of state and federal laws on student loans one step closer to the Supreme Court.”)

Elie Peltz, CLS ’21

In recent years, searches of electronic devices have skyrocketed at the border, nearly quadrupling.[1] In response to litigation filed by the ACLU of Massachusetts and the Electronic Frontier Foundation (EFF), the United States District Court for the District of Massachusetts recently issued a ruling on November 12^th stating that arbitrary searches of international travelers’ devices at airports and U.S. ports of entry violate the Fourth Amendment.

The ACLU and EFF brought the lawsuit on behalf of eleven travelers whose electronic devices had been searched at border crossings and airports. During the court proceedings, an attorney for Customs and Border Protection (CBP) stated that the agency had searched 30,200 electronic devices in 2018, a 60% increase from the previous year. [2] It was also revealed that CBP and Immigration and Customs Enforcement (ICE) permitted searches of travelers’ devices for matters beyond the scope of customs and immigration enforcement.[3] The agency explained that searches can include downloading material from a laptop to looking at pictures on a camera memory card.[4]

Judge Denise Casper’s summary judgment ruling held that in order to comply with the Fourth Amendment, agents with ICE and CPB must show reasonable suspicion that a device includes illegal contraband before initiating a search.[5]  In addressing the privacy interests of travelers, Judge Casper underscored the heightened concern attached to searches of digital devices.  She wrote that “the potential level of intrusion from a search of a person’s electronic devices simply has no easy comparison to non-digital searches.”[6] The ruling relied on previous Supreme Court and circuit decisions that have made clear that older Fourth Amendment principles applied to non-digital contexts cannot be applied carte blanche to digital searches.[7] These decisions have established that digital devices contain a wealth of personal information not accessible through searches of most non-digital items.

Plaintiffs had sought a heightened privacy standard mandating warrants justified by probable cause. Instead, Casper opted to institute a lower reasonable suspicion standard given the government’s interest in “territorial integrity” and travelers’ reduced expectation of privacy when crossing the border. [8] Casper also ruled against a motion requesting that all information previously gathered from agency electronic device searches at the border be expunged. Granting the motion would be superfluous, asserted Casper, given that the government will have to demonstrate reasonable suspicion to legitimize use of that data in the future. [9]

Casper found that both “basic” and “advanced” searches conducted by the agency violate the Fourth Amendment, and ruled that both kinds of searches will require reasonable suspicion of illegal material moving forward.[10] “Advanced” searches, as defined by CPB, occur when an officer uses external equipment through a wired or wireless connection to an electronic device to review or a copy the contents on the device. All other searches are classified as “basic.”[11] Additionally, Casper’s decision applies to both U.S. persons as well as foreign visitors.[12]

Plaintiffs hailed the ruling as a “historic opinion.”[13] The government has until January to appeal Casper’s ruling.[14]

[1] Hugh Handeyside, et al., Federal Court Rules That Border Officers Can’t Arbitrarily Search Our Electronic Devices, ACLU, (November 13, 2019) https://www.aclu.org/news/immigrants-rights/federal-court-rules-that-border-patrol-cant-arbitrarily-search-our-electronic-devices/.

[2] Zack Huffman, Judge Says Feds Need Reasons for Border Tech Searches, Courthouse News Service, (November 12, 2019) https://www.courthousenews.com/judge-says-feds-need-reasons-for-border-tech-searches/.

[3] Id.

[4] Id.

[5] Alasaad v. Nielsen, 2019 WL 5899371 (D. Mass. Nov. 12, 2019).

[6] Id. at *12.

[7] See e.g. Riley v. California, 573 U.S. 373, 393 (2014) (noting that cell phones are “minicomputers that also happen to have the capacity to be used as a telephone”); United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013).

[8] Alasaad, 2019 WL at *8.

[9] Zack Huffman, Judge Says Feds Need Reasons for Border Tech Searches, Courthouse News Service, (November 12, 2019) https://www.courthousenews.com/judge-says-feds-need-reasons-for-border-tech-searches/.

[10] Id. at *14.

[11] Id. at *2.

[12] Sophia Cope , et al., Federal Judge Issues Historic Opinion for Digital Privacy at the Border, Electronic Frontier Foundation, (November 15, 2019) https://www.eff.org/deeplinks/2019/11/federal-judge-issues-historic-opinion-digital-privacy-border.

[13] Sophia Cope, et al., Federal Judge Issues Historic Opinion for Digital Privacy at the Border, Electronic Frontier Foundation, (November 15, 2019) https://www.eff.org/deeplinks/2019/11/federal-judge-issues-historic-opinion-digital-privacy-border.

[14] Alaina Lancaster, ICE and CBP Searches Violate Fourth Amendment, Judge Rules, LAW.COM, (November 20, 2019) https://www.law.com/2019/11/20/whats-next-the-fourth-amendment-at-the-border-and-beyond-meeting-hackers-in-the-middle-what-to-watch-in-google-v-oracle/.