What Will Anthony Kennedy Think of Partisan Gerrymandering This Time?

Written by Jonathan Byron

Photo by Steve RhodesCC BY-NC-ND 2.0 License.

Gill v. Whitford (argued Oct. 3, 2017), a case concerning the constitutionality of Wisconsin’s state assembly district map, is one of the highest profile Supreme Court cases of this term. The Court’s decision may have a dramatic impact on national politics. Justice Anthony Kennedy stands at the center of the case, as he will likely be the swing vote on a Court otherwise split along partisan lines.

Gill will require the Court to revisit its decision in Vieth v. Jubelirer (2004). In Vieth, one of the last cases before the Court concerning partisan gerrymandering, Justice Kennedy’s vote also played a critical role. Although he concurred in the judgment that the Court could not invalidate the districting scheme in question, Kennedy did not agree with the controlling opinion by the late Justice Scalia. Instead, Kennedy wrote a concurrence that explicitly left open the possibility that the Court might someday find a judicially enforceable standard it could use to determine whether a given partisan redistricting scheme was unconstitutional. Vieth resulted in a 4–1–4 split that set the stage for the arguments in Gill thirteen years later.

An examination of Kennedy’s concurrence in Vieth and his questioning during oral argument in Gill provides insight into what he may require in a test for political gerrymandering and how he may vote. In Vieth, Kennedy rejected Scalia’s argument that partisan redistricting cannot compromise First Amendment rights. Kennedy argued that, although showing that partisan concerns were a factor in gerrymandering is not sufficient to prove a constitutional violation, such redistricting could unjustly burden an individual’s representational rights if the extent of the gerrymandering did not serve a legitimate government purpose.

However, even if the Court determined a violation occurred, Kennedy noted that this would mean nothing if it could not adopt a test based on “comprehensive and neutral principles for drawing electoral boundaries.” Without such a test, the courts risked improper judicial intervention and inconsistent outcomes. Kennedy noted that although a test that solved these issues might one day exist, the test proposed by the plaintiffs in Vieth—that the percentage of votes cast for a party should align with the percentage of seats won—was based on no authority and left courts with no obvious way to measure the burden on representational rights, given that partisanship is a legitimate standard upon which a state could base an electoral map.

Is the standard, termed the “efficiency gap,” that the plaintiffs advocate in Gill the test that Kennedy is looking for? In Vieth, Kennedy rejected a test that measured purely partisan asymmetry, but the new test is less rigid, and its proponents argue that it more specifically targets invidious attempts by majority parties to secure indefinite control of state legislatures and congressional seats. The efficiency gap, developed by two University of Chicago professors, is a measure of the difference in a state-wide election of “wasted votes” between parties. Wasted votes are defined as the number of votes not cast for a winning candidate. The test is arguably a useful metric because the purpose of gerrymandering is to maximize the amount of wasted votes for the opposing party.

At oral argument in Gill v. Whitford, Kennedy’s questioning was seemingly not concerned with the plaintiff’s standard. He addressed questions only to the appellants, who defended the gerrymander, and asked whether a hypothetical state law that explicitly required the government to draw a map favoring one party over another was lawful, and if not, on what grounds. He also asked the Wisconsin Solicitor General whether conceptualizing the harm as a First Amendment violation would address the appellant’s arguments that the plaintiffs did not have standing. These questions seem to indicate that Kennedy may be looking for a way around basing the constitutional violation on a suspect classification, as racial gerrymandering cases do. Kennedy may instead seek to frame the issue as a burden on representational rights.

Interestingly, Kennedy was silent on the matter of a justiciable standard, even as other Justices bombarded Paul Smith with inquiries about the reliability and administrablilty of the efficiency gap. The silence may suggest that Kennedy is content that the plaintiffs’ social science based model is sufficiently fair and neutral.

However, those hoping for a sweeping repudiation of the political districting schemes that have proliferated throughout the country may need to temper their hopes. At oral argument, the plaintiffs acknowledged that the standard should likely only apply to the most egregious partisan redistricting. Given this high bar, Kennedy may be satisfied that the test is acceptable because it can eliminate the worst cases of redistricting without going too far.

Thus, even if Kennedy joins a majority that votes down the map, the precedent set may only prevent gerrymandering from becoming an increasingly more difficult barrier for minority parties to overcome. Another possibility is a similar result to Vieth, as Kennedy could vote against Wisconsin’s scheme but refuse to sign his name to an opinion that gives courts too much power to invalidate partisan maps, resulting in a plurality opinion and leaving the larger issue of political gerrymandering unsettled.

Whatever the outcome, it seems that Kennedy believes partisan gerrymandering implicates the First Amendment in ways that the apportionment cases and their predecessors do not. Kennedy also seems to accept the efficiency gap test, and the courts might soon have the long sought after standard for halting the tide of political gerrymandering. With these clues in mind, it is likely that the Wisconsin map at issue in Gill will not survive; however, how far the Court will wade into the rising political waters rests on Justice Kennedy and the four other Justices who agree with him.

“Reasonably Necessary”: Ayestas v. Davis and Capital Defense Funding for Federal Habeas Proceedings

Written by Eva Derzic

Photo by Alexander C. Kafka, CC-BY-ND 2.0 License.

On October 30, 2017, the U.S. Supreme Court heard oral argument about the availability of funding for capital defense investigations in Ayestas v. Davis. The specific issue before the Court was whether 18 U.S.C. § 3599(f) allows courts to order funding for federal habeas counsel to investigate and develop ineffective-assistance-of-counsel claims not raised by state habeas counsel. The Court’s answer will affect the ability of death-row inmates to use federal habeas petitions to challenge the effectiveness of their trial counsel.

In 1997, Carlos Ayestas was convicted and sentenced to death by a Texas state court for his alleged role in a 1995 robbery that culminated in a murder. In 2009, having exhausted direct appeal and state habeas procedures, Ayestas filed a federal habeas petition that raised several new arguments for relief from his sentence, including a claim regarding ineffective assistance of his counsel at trial. Ayestas moved the court for funding to investigate and develop this claim, describing his trial counsel’s limited mitigation investigation and their failure to consult with any mental health experts despite Ayestas’ known history of severe substance abuse. Ayestas argued that by failing to conduct a reasonable mitigation investigation, trial counsel violated his Sixth Amendment right to effective counsel. Section 3599(f) of the Criminal Justice Act provides that on “finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant . . . the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor.”

The law is unsettled regarding the availability of funding for resources for federal habeas counsel. In 2003, the Court ruled in Wiggins v. Smith (2003) that defense counsel’s failure to conduct reasonably necessary mitigation investigations in advance of sentencing proceedings in capital cases could raise a cognizable ineffectiveness-of-counsel claim. Later, in 2013, the Court ruled in Trevino v. Thaler (2013) that ineffective assistance of state post-conviction counsel could excuse a petitioner’s failure to raise an ineffective assistance claim before federal habeas proceedings.

The question of funding for habeas claims remains open, however. In Ayestas’ case, the Fifth Circuit held that, in order to show that funding for investigative resources was “reasonably necessary,” a petitioner challenging his sentence based on ineffective assistance of counsel has to make a “substantiated argument, not speculation, about what the prior counsel did or omitted doing.” In other words, to obtain resources, federal habeas counsel would have to prove what mitigating facts trial counsel failed to uncover—without having any resources to do so. This seems to be an impossible burden to meet. Texas’ Response Brief argues that denial of funding is not reviewable because it is an “administrative function” and not an exercise of Article III judicial power. Seeming to ignore the Court’s ruling in Trevino, Texas asserts that the Antiterrorism and Effective Death Penalty Act’s prohibition on new evidence in federal habeas petitions necessarily bars funding for mitigation investigations at the habeas stage. Simply put, their claim is that mitigation investigations cannot be “reasonably necessary” at the federal habeas stage because any new evidence uncovered would not be admissible.

Funding for capital defense has long been a source of headache and contention. ABA Guidelines advise that defense attorneys “in death penalty cases should be fully compensated at a rate that is commensurate with the provision of high quality legal representation and reflects the extraordinary responsibilities inherent in death penalty representation.” (p. 981). The Guidelines further caution against “[f]lat fees, caps on compensation, and lump sum contracts” and suggest that salaries for capital defense attorneys should be “commensurate with the salary scale of the prosecutor’s office in the jurisdiction.” (p. 982).

Adequate compensation for counsel’s time is not the only concern; funding for experts and investigative resources is also crucial to effective representation. A 2010 Judicial Conference report (p. 44) makes it clear that defense funding makes a difference in the quality of representation, finding that “individuals whose defense cost less than $320,000 in combined attorney and expert assistance—the lowest one-third of federal capital trials—had a 44% chance of being sentenced to death at trial. Individuals whose total representation costs were above that amount—the remaining two-thirds of defendants—had a 19% chance of being sentenced to death.”

Despite the ABA’s advisory against lump sum contracts and compensation ceilings, they remain a fixture in many compensation schemes, causing some defense attorneys take on more cases than they can reasonably handle to try to make ends meet. Further, despite the statutory provision appearing to provide for funding for defense resources, defense attorneys frequently struggle to obtain funding for critical expert and investigative services. The capital defense bar is riddled with horror stories about funding battles, including a particularly egregious case (p. 781 n.24) where a defense attorney admitted in a habeas petition that he was forced to choose between paying rent or flying out of state to continue a mitigation investigation on behalf of his client. Earlier this month, a Utah defense attorney was fired for publicly criticizing Weber County’s failure to make defense funding available for capital cases.

Ayestas’ case will determine whether courts can make funding for expert and investigative resources available for ineffective assistance claims at the federal habeas stage. SCOTUSBlog’s Steve Vladeck anticipates that he is on his way to a narrow victory. In any event, the Court’s ruling will help define what counsel must demonstrate to show that expert or investigative services are “reasonably necessary.”

Court Grants Preliminary Injunction Against President Trump’s Transgender Military Ban

Written by Joshua Cowin

Dept. of Defense photo by Navy Petty Officer 2nd Class Dominique A. Pineiro/Released.

On July 26, 2017, President Trump announced a directive on Twitter that would ban transgender individuals from serving in the military. This decision reversed a policy approved under the Obama Administration that would allow transgender military personnel to openly serve. President Trump cited the “tremendous medical costs and disruption that transgender in the military would entail” as his rationale for this ban.

The RAND Corporation estimates that there are between 1,320 and 6,630 transgender personnel serving in active duty, and between 830 and 4,160 in the Selective Reserve. On August 25, 2017, President Trump formally ordered the Department of Defense to reverse the Obama Administration’s policy, stating that the military will be indefinitely barred from accepting new transgender troops, and new “trans-related medical treatments” will be blocked.

In response to President Trump’s initial announcement on Twitter, the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders filed a federal lawsuit challenging the order on behalf of five transgender service members with nearly sixty years of combined military service. On October 30, 2017, in Doe v. Trump (D.D.C. 2017), the U.S. District Court for the District of Columbia issued a preliminary injunction of the ban. Judge Colleen Kollar-Kotelly wrote that the plaintiffs are likely to succeed in their argument that the transgender ban violates their guarantee to equal protection afforded by the Due Process Clause of the Fifth Amendment.

The court found that the plaintiffs had standing to fight two issues arising from the directive. First, the directive injured future transgender individuals who would be denied the opportunity to enter the military. Second, the President’s policy requires the military to authorize the discharge of all current transgender service members by March 23, 2018, which includes the plaintiffs in this suit.

The court next applied intermediate scrutiny to evaluate whether the plaintiffs are likely to succeed in their equal protection claims. Although the court explicitly acknowledged that it was “aware of no binding precedent on this issue,” it noted that transgender individuals “appear to satisfy the criteria of at least a quasi-suspect classification” because of their immutable and distinguishing characteristics, as well as the history of transgender individuals facing discrimination. The court also noted that intermediate scrutiny applies because the directives discriminate based on gender and transgender individuals’ failure to conform to gender stereotypes.

The defendants argued that the directives satisfy intermediate scrutiny because “some transgender individuals suffer from medical conditions that could impede the performance of their duties,” the military has discretion to decide that certain medical conditions “may limit the deployability of transgender individuals as well as impose additional costs on the armed forces,” and it is reasonable for the President to conclude that transgender individuals in the military would harm unit cohesion. The District Court rejected these rationales, concluding that these reasons “appear to be hypothetical and extremely overbroad,” and stating that the President’s proffered reasons were “actually contradicted by the studies, conclusions and judgment of the military itself.” Intriguingly, the opinion also cites to the President’s abrupt announcement on Twitter, which was posted without any formality or deliberative process, as additional support that this decision was “not driven by genuine concerns regarding military efficacy.”

Plaintiffs’ lawyer Shannon Minter celebrated the ruling, stating that it was “a complete victory for our plaintiffs and all transgender service members who are now once again able to serve on equal terms and without the threat of being discharged.”

Steve Vladeck, a professor at the University of Texas School of Law, noted that the ruling was significant because it recognizes the consequences of the President’s words and tweets, and it is based on a conclusion that the Constitution limits the government’s ability to discriminate against transgender people. In fact, some advocates argue that the opinion is even more important because the decision to apply heightened scrutiny may create momentum for the judicial protection of transgender rights.

Press Secretary Sarah Huckabee Sanders told reporters that the Justice Department was evaluating the holding and deciding whether to appeal. However, scholars have questioned the President’s success on appeal. Carl Tobias, a professor at the University of Richmond School of Law, argued that the only chance of getting the preliminary injunction reversed would require going all the way to the Supreme Court because “[i]f they go to the D.C. Circuit, I can’t imagine they are going to overturn this. . . . The judge was strong in her opinion.”

Whether or not this case will be upheld remains to be seen. However, in the interim, the holding has made transgender troops like Air Force Staff Sergeant Logan Ireland cautiously optimistic about the future.

“We want to go back to serving,” Ireland said. “There are troops that work under me, there is work to be done.”

Leveraging Social Science Evidence in the Courts Today

Written by Meredith McBride

Prof. Peery moderates a discussion with Hons. Ellis, Chang, and Kendall. Photo by Thomas Rousse.

United States District Judges Edmond E. Chang, Sara L. Ellis, and Virginia M. Kendall comprised the fourth and final panel of the Northwestern University Law Review’s October 20, 2017 symposium, “‘A Fear of Too Much Justice’?: Equal Protection and the Social Sciences 30 Years after McCleskey v. Kemp, engaging questions of evidence, epistemology, and expertise on the contemporary bench. Professor Destiny Peery (Northwestern Law) facilitated the panel.

In McCleskey v. Kemp (1987), the Supreme Court was presented with an extensive and rigorous statistical study demonstrating that in Georgia courts, black defendants who had killed white victims were sentenced to death at far higher rates than any other race of defendant who had killed any other race of victim. The Court ultimately held that this evidence was insufficient to support an inference that decisionmakers who had sentenced Warren McCleskey, a black defendant who had killed a white victim, to death had acted with discriminatory purpose. In the years since McCleskey, scholars and courts have grappled with the role of social science in equal protection cases. Advocates seeking to establish equal protection violations in the wake of McCleskey have often been frustrated by the seeming impossibility of bringing any type of social science evidence—by nature aggregate and probabilistic—to bear on specific and particularized fact patterns.

Thirty years after this landmark case, Judges Chang, Ellis, and Kendall expressed a new, if cautious, openness of the bench to social science evidence. All three judges emphasized the importance of applying best practices of fact record development to the use of social science evidence. That is, advocates must show how the evidence is relevant to a particular element or claim, and must introduce it under the appropriate Federal Rule of Evidence. Judge Chang emphasized that lawyers should not cherry-pick quotes from studies that seem to support their argument without having a holistic understanding of the studies and confirming that their methods and conclusions truly support the point they are trying to make. Judge Chang drew a laugh from the audience when he expressed suspicion of briefs that, when using social science evidence, quote only from the first few pages of a study.

The judges also compared social science expertise to other kinds of expert information that are used in litigation. For example, they apply the Daubert standard to social science evidence coming into a case under Federal Rule of Evidence 702, evaluating such evidence with scrutiny comparable to any other expert or technical evidence that parties may seek to introduce. “Hard” social science may be easier for attorneys to introduce than “soft” social science, in part because the Daubert standard itself has been defined with reference to scientific methods more analogous to quantitative than qualitative methodologies. Additionally, judges often have a higher “comfort level,” as Judge Kendall put it, with quantitative methods. Judge Ellis, however, stated that she does not differentiate among social science disciplines in evaluating methodology, and expressed openness to various methodologies so long as they are rigorous and clear enough that she can have confidence in the results.

Evidence of all types is scrutinized more closely when the stakes are higher, Judge Chang noted. The judge hypothesized that this may account for courts’ historical reluctance to engage with social science evidence in, for example, civil cases with high dollar amounts at stake. Judge Kendall pointed out, however, that social science evidence has routinely been used for many years in sentencing hearings, which are among the highest-stakes proceedings in our legal system. In the end, the bench’s willingness to rely on social science evidence is context-dependent. However, advocates can take advantage of the contexts in which it is welcome, and, perhaps create new contexts by meticulously making social science evidence legible to the courts through established practices of developing the fact record.

An Analysis of Catalonia’s Independence Movement

Written by Peter Candel

Photo by David Tubau, CC BY-NC 2.0 License.

Catalonia is one of Spain’s wealthiest and most important regions, accounting for 16% and 19% of Spain’s population and economy, respectively. However, Catalonia has its own language and distinct culture, which is one of the many reasons the region has pushed for independence. Although it’s a popular topic in recent news, the independence movement is nothing new. During Francisco Franco’s dictatorship (1939–75), Catalan culture and autonomy was violently suppressed. It was not until democracy returned with the adoption of the Spanish Constitution in 1978 that Catalonia regained its status as an autonomous region. This autonomy was enhanced with the 2006 “Statute of Autonomy of Catalonia,” which stymied the independence movement. However, two events re-energized the movement. First, Spain’s Constitutional Court, which has the ultimate power in determining the constitutionality of government action and legislation, struck down and modified certain provisions of the 2006 statute, generally reducing Catalonia’s autonomy and specifically eliminating any legal significance of the word “nation” therein. Second, the financial crisis led to poor economic conditions that increased the Catalans’ frustration with contributing more in taxes than they receive in government aid.

The referendum from this past month is not unprecedented, as a similar referendum was held in November 2014, in defiance of Spain’s Constitutional Court and Parliament. The referendum had a 42% turnout, with 81% voting for independence. However, Catalonia’s bid for secession was struck down as unconstitutional in December 2015. Nonetheless, the movement was reinvigorated when staunch separatist Carles Puigdemont was elected to head the regional government in January 2016. In September 2017, as a result of Puigdemont’s efforts, the Catalan government called for a referendum to be held on October 1st, with a declaration of independence to follow if the referendum favored secession. Despite the Constitutional Court already ruling this referendum illegal on September 7th, the referendum was held, with a 38% turnout rate and 90% of the votes favoring independence. Thereafter, Catalonia issued an official declaration of independence on October 27th and the central government immediately ousted the Catalan government officials and imposed direct-rule after invoking Section 155 of Spain’s Constitution, for the first time ever. The Constitutional Court ruled the declaration illegal on November 8th.

Why was the referendum ruled illegal? The answer is that it expressly violated Spain’s Constitution. Section 92 permits consultative referendums, submitted to all citizens, on “[p]olitical decisions of special importance.” The referendum must be “called by the King on the President of the Government’s proposal after previous authorization by the Congress.” The Catalonia referendum was therefore unconstitutional because: (a) it was not submitted to all Spanish citizens, (b) it had a binding rather than consultative effect, by mandating a declaration of independence to follow if a majority favored independence, and (c) it did not follow the procedural requirements. Further, Section 149 grants Spain the “exclusive competence over. . . . [a]uthorization of popular consultations through the holding of referendums.” The Catalan government therefore exceeded its authority in passing legislation by referendum, in violation of Section 149.

Based on the unconstitutionality of the Catalan government’s actions, the “Code of Good Practice on Referendums,” adopted by the Council for Democratic Elections and Venice Commission in 2006, does not support the validity of the referendum. Pursuant to Part III, Section 1, “[t]he use of referendums must comply with the legal system as a whole, and especially the procedural rules.” As noted above, the Catalonia referendum expressly violates Spain’s Constitution and the procedural rules it requires for referenda. Further, Spain’s Constitution expressly precludes binding effects of a referendum. Thus, the binding effect of the Catalonia referendum violates the Code’s Part III, Section 8, which states that ““[t]he effects of legally binding or consultative referendums must be clearly specified in the Constitution or by law,” as the effect was not specified, and in fact was precluded. Lastly, Part II, Section 2 states “[t]he fundamental aspects of referendum law should not be open to amendment less than one year before a referendum.” For a referendum like Catalonia’s to be held, not only would Spain’s Constitution need to be amended, but the referendum would have to wait at least a year, which was not the case here.

Therefore, the Catalonia referendum goes against Spain’s Constitution and the Code of Good Practice on Referendums. If the mechanism behind the declaration of independence is unconstitutional, it should follow that the declaration itself is unconstitutional, particularly since it goes against the founding principle of Spain’s Constitution, found in Section 2—the “indissoluble unity of the Spanish Nation.”

Although Catalonia’s actions lack legality, there may be other grounds to support them. It appears the movement is grounded in four factors. First and foremost, there is an inequality in the amount of taxes paid by Catalonia in relation to government aid received. Second, there are significant cultural differences, principally language. Third, Catalonia believes there is an unequivocal political right to self-determination. Lastly, there is a general distrust against the central government because of embezzlement and other corruption allegations.

While those are all issues that should be addressed, they do not appear to rise to the “‘extreme cases’ and ‘carefully defined circumstances’ under which the privilege of secession exists,” as defined by Christopher Borgen in his analysis of Kosovo’s declaration of independence. His research found that for the privilege to exist, “state practice, court opinions, and other authoritative writings” require, at a minimum, three elements be met, including a showing of serious violations of human rights. It does not appear that any of the Catalans’ grievances or motivations for secession fall within that requirement.

Regardless of the merits of the movement, the political reality is that the friction between Catalonia and the central government remains. Spain’s attorney general has brought charges against the ousted Catalan officials. We will have to wait and see how those charges proceed and are carried out. Regional elections will be held in Catalonia on December 21st, where those elected will have the opportunity to continue this unfortunate chapter in Spain’s history, or re-write a new one.

BIPA and Its Federal Problems

Written by Alexander Ogren

Chris Costes (CC BY 2.0)

It’s not fun to have your credit card or identity stolen. It takes time, money, and mental energy to right yourself. Now, instead of just using cards as the gatekeepers, many companies are using customers’ biometric information, such as fingerprints and facial geometry scans, to control access to private information. But unlike credit cards, you can’t just order a new one to secure your data. All victims of such thefts would need reconstructive surgery to protect themselves from future risk.

Recognizing this concern, Illinois passed the Biometric Information Privacy Act (BIPA), 740 Ill. Comp. Stat. 14/1 et seq., to incentivize companies to handle biometric data more securely. Specifically, the Act requires companies to publish and disclose a policy about how it collects, uses, and destroys the information. Other states have passed similar laws allowing regulatory control over companies possessing biometric data, but Illinois is the first to create a private right of action for consumers against companies storing such information. As you might expect when you combine gigantic companies storing data on huge numbers of people with $1,000 fines per violation, BIPA has led to massive class-action lawsuits.

Illinois courts have, unsurprisingly, taken a somewhat lenient view towards these claims. For example, Sekura v. L.A. Enterprises, Inc., No. 15-CH-16694, ultimately settled for $1.5 million. But corporate defendants who are able to transfer their cases into federal courts based on diversity jurisdiction have launched successful attacks against the claim.

One such defendant was Facebook, who has faced multiple lawsuits alleging that the facial geometry data used by its photo tagging suggestion feature violates the Act. The first defense that Facebook raised, in Gullen v. Facebook.com, Inc. (N.D. Ill. 2016), was personal jurisdiction, as Seventh Circuit precedent creates a high bar against websites, forcing plaintiffs to likely have to go to out of state to sue tech companies. One such class made the trip, as In re Facebook Biometric Information Privacy Litigation(N.D. Cal. 2016) shows. But the plaintiffs still face a daunting hurdle in the form of Article III standing, draped over the case last year on the basis of the Supreme Court’s opinion in Spokeo, Inc. v. Robins (2016) (holding that a “bare procedural violation” of a statute is insufficient to establish Article III standing; rather, the plaintiff must have suffered harm to a concrete interest). Facebook argued that simply not disclosing how it is collecting and storing the information is a bare procedural violation without any further concrete harm. Facebook is currently pending in district court, but defendants in other jurisdictions have already challenged BIPA claims under the new Spokeo standard.

First, in McCollough v. Smarte Carte, Inc. (N.D. Ill. 2016), plaintiffs sued a locker and luggage cart rental service that utilizes fingerprints to control access to the equipment. The court dismissed the claim, stating that the plaintiff must have known that the defendant was storing the information (since she used her thumbprint to get into her locker), and that there was no risk the information would be disclosed.

Following that decision, a court also declined to recognize standing in Vigil v. Take-Two Interactive Software, Inc. (S.D.N.Y. 2017). Here, plaintiffs sued over the storage of facial scans used to create digital avatars for the video game NBA 2K15. Utilizing a two-step, Second Circuit framework, the court held that the privacy concerns implicated by the statute were not at issue, as there was no risk that the information would be disclosed. Mere storage was consistent with how the plaintiffs expected the data to be used and could not confer standing.

But in Monroy v. Shutterfly, Inc. (N.D. Ill. 2017), a court held that where the plaintiff had never used Shutterfly, he did not consent to the storage of his facial geometry for tagging purposes. This distinguished the prior cases, holding that ignorance as to the fact that personal data is even being collected can create a concrete privacy injury.

Apart from standing, plaintiffs also must show that the activity is geographically covered by Illinois law. In Rivera v. Google Inc. (N.D. Ill. 2017), Google challenged whether the Act covered face templates used to find and group together photographs of people taken on Droid smartphones. Because these issues occur on the “cloud”—and don’t necessarily involve a specific location within Illinois—there is some dispute as to where the harm occurred, and imposing liability for photographs with tenuous connections to Illinois will make Google comply with the Act nationwide, potentially violating the Commerce Clause by interfering with other states’ rights to regulate the internet. Because Illinois uses a circumstantial, factor-based test to address the extraterritoriality, the court declined to decide these issues without factual discovery about the creation of the data and the location of consent, leaving these questions open for future resolution.

The list of defendants in Illinois courts illustrates the breadth of the Act: hotels, tanning salons, steel and manufacturing companies, Snapchat, food service providers, and bars have all been sued. Complicating matters, more states are considering similar laws, which companies are fighting vigorously. And while a congressional solution could address the Commerce Clause and consumer protection issues, Congress has not really looked into this issue since 2014. In light of the Equifax breach, however, there is some thought that Congress should do away with Social Security numbers altogether and replace them with biometric information, which would lead to an even greater need for regulation to protect consumers’ privacy interests. Recognizing this importance, states probably are not going to do away with their statutes. And given that companies gain significant value from this information, the collection, use, regulation, and subsequent litigation in this field probably are not going to go away either. Federal courts are thus going to have to resolve these issues or face kicking the can to state courts to play the major role in regulating some of the U.S. economy’s largest actors.

Equal Protection and the Social Sciences Beyond Criminal Justice

Written by Noor Tarabishy

Following a discussion about the use of social science evidence in the criminal justice system at the Northwestern University Law Review Symposium, Professor Laura Beth Nielsen (Northwestern, Sociology) moderated a panel that explored the varying degrees of success social science has had and the challenges faced by advocates in civil rights litigation.

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Professors Russell K. Robinson (Berkeley) and David M. Frost (Columbia) examined the use of social science research in Obergefell v. Hodges (2015), where the American Psychological Association presented two types of social science research in their amicus brief in support of petitioners. Robinson and Frost termed these “sameness studies” and “minority-stress studies.” Sameness studies demonstrate that there are no differences between heterosexual and homosexual couples in intimate relationships, while minority-stress studies focus on the psychological effects of being stigmatized by society, such as depression and anxiety. Each of the two types of studies was cited and played a role in the Supreme Court’s decision. The Court emphasized sameness, for example, when it noted that “many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted.” It then noted that without marriage, children of same-sex parents “suffer the stigma of knowing their families are somehow lesser.” The authors noted that the Obergefell opinion is inconsistent in that it acknowledges the stigma same-sex couples and their families face while simultaneously declaring that the exclusion of such couples from the institution of marriage is a view held in “good faith by reasonable and sincere people here and throughout the world.”

Professor Bernadette Atuahene (IIT Chicago-Kent) described the use of social science research in ongoing litigation challenging tax foreclosures in Wayne County, Michigan. The plaintiffs in that lawsuit argue that the county failed to reassess property taxes after the Great Recession, resulting in high tax assessments that violated the Michigan Constitution. Homeowners were then subject to tax foreclosure for their inability to pay the property taxes. Atuahene’s research showed that the tax foreclosures disproportionately affected predominantly black neighborhoods, with rates 10 to 15 times higher than in predominantly non-black neighborhoods. The plaintiffs’ advocates argue that this constitutes illegal housing discrimination in violation of the Fair Housing Act. Although the social science research does not establish discriminatory intent, Atuahene noted that the plaintiffs could prevail because the Fair Housing Act prohibits neutral practices with a disparate impact on a protected class––not just intentional discrimination.

Professor Victoria Plaut (Berkeley) and Ph.D student Kyneshawau Hurd (Berkeley) explored how the focus of higher education affirmative action policies has shifted from remedying past discrimination to promoting diversity. In Regents of the University of California v. Bakke (1978) and Grutter v. Bollinger (2003), the Supreme Court concluded that (1) reducing the deficit of traditionally disfavored minorities, (2) remedying past discrimination, and (3) increasing the number of practitioners in underserved communities were all impermissible justifications for race-conscious admission policies. Instead, the Court approved the diversity rationale, concluding that promoting diversity in higher education was a compelling interest. Plaut and Hurd cautioned that the diversity rationale appears to benefit students in the majority, portraying students of color as subjects to enrich the experiences of other students. Their study showed that white students who considered themselves egalitarian but scored high on social dominance tests were more likely to support race-conscious admission policies for their diversity benefits than to remedy past discrimination. Plaut and Hurd argued that this focus on diversity fosters a sense of entitlement in white students that undermines inclusion.

Professor Michele Goodwin (UC-Irvine) discussed the different “rhetorical traps” used to deprive women––particularly women of color––of their reproductive rights. False information about the safety of abortion is widespread, and states rely on this misinformation to enact laws that restrict women’s access to reproductive services. Under the guise of protecting the health of women and unborn fetuses, these laws require women to wait for a period of time before they are permitted to receive an abortion, and employers can limit benefits to services they believe to involve abortion. In some states, a woman with a substance-abuse problem can be arrested for “endangering her pregnancy.” Goodwin’s scrutinized the rhetoric underlying such policies and demonstrated the absence of any empirical basis to support it. She mentioned, for example, that a woman is fourteen times more likely to die from complications of live childbirth than she is to die from complications of abortion. Goodwin noted the importance of challenging such rhetorical traps because they endanger the lives of women, especially women of color.

The panel emphasized that social science research still has a long way to go to be accepted as evidence of discrimination. In Obergefell, the Supreme Court cited minority-stress studies but stopped short of labeling the majority view as discriminatory. The plaintiffs in the Wayne County tax foreclosure litigation only have a valid claim because the Fair Housing Act does not require proving discriminatory intent. And in the area of race-conscious admission policies, the Supreme Court has shifted its focus from remedying past discrimination to promoting diversity. The Court today is not any more receptive to the use of social science than it was in McClesky v. Kemp (1987).

The U.S. Supreme Court Considers Class Action Waivers in Employment Arbitration Agreements

Written by Lois Ahn

U.S. Supreme Court. (CC BY-SA 2.0 Matt Wade)

On Monday, October 2, 2017, the U.S. Supreme Court heard consolidated oral argument in Epic Systems Corp. v. Lewis, No. 16-285, Morris v. Ernst & Young, LLP, No. 16-300, and Murphy Oil USA, Inc. v. NLRB, No. 16-307, considering the validity of class action waivers in employment arbitration agreements.

This issue concerns the interaction of two federal statutes—the Federal Arbitration Act (FAA) and the National Labor Relations Act (NLRA). The FAA provides that an agreement to submit any dispute to arbitration “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Section 8(a)(1) of the NLRA states, “[i]t shall be an unfair labor practice to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” 29 U.S.C. § 158(a)(1). The rights guaranteed by Section 7 include the right to engage in concerted activities for mutual aid or protection. 29 U.S.C. § 157.

The Fifth, the Second, and the Eighth Circuits have held that class action waivers are enforceable. For example, in Murphy Oil USA, Inc. v. NLRB (5th Cir. 2015), the Fifth Circuit held that such waivers do not violate the NLRA because the use of class action procedures “is not a substantive right under Section 7 of the NLRA.”

On the other hand, the Seventh and Ninth Circuits have held that class action waivers in employment arbitration agreements violate the NLRA because forming a class or collective to contest employment issues is a substantive right protected by Section 7. For example, in Morris v. Ernst & Young, LLP, (9th Cir. 2016), the Ninth Circuit stated, “Section 7’s ‘mutual aid or protection clause’ includes the substantive right to collectively seek to improve working conditions through resort to administrative and judicial forums.”

At the oral argument, the Department of Justice and the NLRB joined the argument, with the DOJ arguing in support of the employers and the NLRB in support of the employees. Chief Justice Roberts and Justices Kennedy and Alito appeared to side with the employers’ position that class waivers in employment arbitration agreements do not violate the NLRA, with Chief Justice Roberts expressing concern that a Supreme Court ruling finding such waivers unlawful would render approximately 25 million employment agreements invalid.

Justices Ginsburg, Breyer, Sotomayor, and Kagan appeared to support the employees’ position saying otherwise. Justice Ginsburg stated, “To proceed alone in the arbitral forum will cost much more than any potential recovery for one. That’s why this is truly a situation where there is strength in numbers, and that was the core idea of the NLRA. There is strength in numbers. We have to protect the individual worker from being in a situation where he can’t protect his rights.” Justice Kagan stated that, under the NLRA, “employers can’t demand as conditions of employment the waivers of concerted rights.”

Interestingly, Justices Thomas and Gorsuch, the two most conservative Justices on the bench, did not ask any questions. The Supreme Court is expected to issue a decision by June 2018. The transcript of the oral argument can be found here.

From McClesky to Whitford: the Supreme Court’s Ambivalent Attitude Towards Social Science

Written by Russell Quarles

McCleskey v. Kemp was decided on April 22, 1987, and yet the 30 years that have elapsed since Justice Powell circulated his majority opinion have done little to soften McCleskey’s sharp edges. The case concerned a challenge from a death-row inmate to the administration of capital punishment in Georgia, where he had been sentenced for the killing of a white police officer. McCleskey argued that his capital sentence was driven in large part by his race, in combination with the race of his victim, and that these considerations violated his constitutional rights under the Eighth and Fourteenth Amendments. As evidence, McCleskey proffered a study demonstrating that a black man who killed a white man in Georgia received a death sentence 22% of the time, as compared to the 1% of death sentences in cases where the victim was also black.  Writing for the majority of the Court, Justice Powell held that social science studies could not prove that there was an individual intent to discriminate against McCleskey during his prosecution or trial, and that his challenge was therefore deficient. McCleskey, having lost his case, was put to death on September 26, 1991.

Powell’s dismissive views of social science are still alive and well at the Supreme Court, as Chief Justice Roberts recently demonstrated with his snide reference to “sociological gobbledygook” during oral argument on October 3. Professors Mario Barnes (UC-Irvine) and Osagie Obasogie (Berkeley) visited Northwestern’s campus last week to discuss their recent research on the Court’s handling of social science at the Northwestern University Law Review 2017 Symposium, A Fear of Too Much Justice.

 

Prof. Barnes speaks while other members of the panel look on.

Prof. Barnes began the discussion by comparing McCleskey’s handling of social science with the Warren Court’s use of research data in Brown v. Board of Education (1954). In Brown’s (in)famous footnote 11, the Court cited the so-called “doll studies,” which purported to prove that children of color had lower self-esteem than white children. Since Brown, the study’s findings have been challenged on a number of fronts, and the Court’s treatment is considered overly credulous by some scholars.

By contrast, McCleskey saw the Court attempting to bury the findings of a methodologically sound study so that the majority could reach their desired result, namely, upholding the death penalty in Georgia without regard to its racially disparate application. For Barnes and his coauthor, Dean Erwin Chemerinsky (U.C. Berkeley), these cases demonstrate that the judiciary needs to adopt better norms about the use of social science in the courts. Data should not be a cudgel used to promote a judge’s own presuppositions, nor should it be an obstacle that a judge need only argue around to reach their desired result. Social science should instead inform a judge’s thinking while they consider legal and factual issues, serving much the same function that economics now does in the courtroom. Barnes advocated for the adoption of standards at the Supreme Court concerning when a judge should allow social science to enter the record, and for how that science could be objectively considered, taking the expert testimony standards from Daubert v. Merrell Dow Pharmaceuticals (1993) as a model.

Prof. Obasagie introduces the symposium.

Professor Obasogie, joined on the panel by his coauthor Zachary Newman (U.C. Berkeley), took a different approach to critiquing the majority opinion in McCleskey. In their view, McCleskey’s result did not come because of (or in spite of) the Court’s handling of social science, it was instead driven by a desire to narrow the judicial consideration of ‘intent’ in the context of discrimination. The authors argued that state-sanctioned killing—either a capital sentence imposed in court, or a police shooting in the street—is always the result of a societal structure. In McCleskey’s case, the public of the state of Georgia had an intent to erect the racially discriminatory structures around capital punishment, and it had an intent to maintain them, despite their demonstrably worse effects for black men. And yet in a series of decisions, the Court atomized the meaning of ‘intent’ within the judicial system such that any consideration of larger social forces—the very forces that are captured and measured in social science—was useless in finding intent. Thus McCleskey, alongside Washington v. Davis (1976) and Graham v. Connor (1989), removed racially discriminatory social structures from the judiciary’s purview, effectively gutting the possibility of any future interventions on the scale of Brown.

To sum up his discussion, Prof. Obasogie asked the audience, “After McCleskey, what’s left to protect people of color in America?”

“Jesus. That’s all we have left.”

Panel Discussion: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

Written by Argie Mina

On October 12, 2017, OUTLaw, Northwestern Pritzker School of Law’s LGBT affinity group, hosted a panel discussing Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, an upcoming Supreme Court case. The case centers on whether businesses can refuse service to LGBTQ customers based on their First Amendment rights to free speech and free exercise of religion. The petitioner in Masterpiece Cakeshop refused to make a rainbow cake for a same-sex marriage ceremony.

Professor Andrew Koppelman, a Northwestern constitutional law professor and scholar, opined that the petitioner’s free speech argument was stronger than the argument based on the free exercise of religion. Professor Koppelman noted three previous Supreme Court cases relevant to Masterpiece CakeshopWest Virginia State Board of Education v. Barnette (1943), Wooley v. Maynard (1977), and Boy Scouts of America et al. v. Dale (2000).

In Barnette, the Court held that the free speech clause prohibited public schools from requiring students to recite the pledge of allegiance. Based on this case, Professor Koppelman stated, the government cannot compel people to say words with which they disagree. The Court extended prohibition against forced speech in Wooley, where it held that New Hampshire could not require citizens to display the state motto on their license plates.

In Dale, the Court held that the Boy Scouts were not required to admit a gay member because it would “affect[] in a significant way the group’s ability to advocate public or private viewpoints.” The First Amendment’s free speech clause, the Court reasoned, superseded New Jersey’s public accommodation laws. According to Professor Koppelman, Dale extended Barnette’s prohibition against forced speech to the form of a person: admitting a gay member was seen as a message imposed on the Boy Scouts.

Masterpiece Cakeshop argues that to compel a business to bake a cake for a gay wedding would be to compel speech in support of same-sex marriage. According to Professor Koppelman, the question is whether the government is forcing Masterpiece Cakeshop to send a message in support of same-sex marriage in the form of a rainbow cake. In other words: is a cake a message, and do Wooley and Dale apply?

Professor Koppelman suggested that the current case presents a broad political question about religious people who do not want to facilitate same-sex relationships. He believes that compromise is the solution, but that the courts are not the best equipped institution to provide the answer. Rather, Professor Koppelman opined, this is an issue better suited for the legislature.

Jamie Gliksberg, a staff attorney at LGBTQ legal advocacy organization Lambda Legal, noted that the Supreme Court has said that any conduct can be considered to include some form of speech. However, according to Ms. Gliksberg, this does not necessarily mean that all conduct is protected by the First Amendment. Ms. Gliksberg noted that the focus is not on free speech, but rather on the requirement to abide by anti-discrimination laws. She also voiced concerns that providing religious exceptions to public accommodation laws would promote some religious beliefs over others, thus creating establishment clause issues.

When asked to predict the outcome of the case, the panelists remained undecided as to which party the believed would win and whether the Court’s holding would be narrow or broad. Specifically, Professor Koppelman noted that Justice Kennedy has historically been supportive of gay rights and has also had an expansive view of free speech, which are two ideals at issue in this case.

Finally, Mike Ziri, the Director of Public Policy at Equality Illinois, an Illinois civil rights organization, commented on societal attitudes toward same-sex relationships. He noted that after the Court’s decision Obergefell v. Hodges (2015), which legalized same-sex marriage, many believed the LGBTQ community had “won” and there was nothing left to fight for. However, Mr. Ziri argued that opponents of same-sex rights have found “creative ways to fight back.” He cautioned that despite what may be considered “great laws,” the LGBTQ community is not immune to discrimination.