NULR 1L Writing Competition: Dred Scott v. Sandford (Dissent)

Written by Walter Garcia

Photo by Álvaro Serrano on Unsplash

The idea of diversity has influenced some of our country’s most important judicial decisions. We asked Northwestern 1Ls to write about a case they studied in their first year of law school that has affected their opinion about diversity in the legal system. Walter was one of the winners.

History will not look kindly upon this Court’s ruling. Nor should it. The short of the matter is that Mr. Dred Scott has been denied his basic sense of humanity, and the Chief Justice shows zero qualms in doing so, going as far as to write:

We think [persons of African descent] are not [citizens of the United States], and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race . . . .

I think otherwise. Indeed, I know otherwise. Like it or not, ours is a nation that, at its very inception, was founded on the principle “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” When those words were written in 1776, our country was already a diverse nation, home yes to men and women of Caucasian ancestry, but also to men and women of African ancestry, to Native Americans, and to so many others. Faced with such a reality, our founding fathers still chose to use the word “all.”

I am therefore of the belief that our Constitution provides us with numerous ways to give Mr. Scott the basic sense of humanity that is being denied to him. Of them all, however, the Guarantee Clause carries the day: “The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.” This Court has expressed its belief that questions arising under the Guarantee Clause are for Congress—not the courts—to decide.

However, if that Clause is to mean anything, if the United States truly is committed to ensuring that all states have a republican form of government, then we must rule in Mr. Scott’s favor. There will always be disagreements on the particulars of what constitutes a republican form of government. What we cannot do, and what this Court does today, is to allow for such disagreement here, when the particulars are not at stake, but when the very foundation of a republican form of government is at stake. Stripped to its very essence, a republican form of government is one in which every man and woman is treated equally, and with respect and dignity. In reference to this topic, James Madison wrote in Federalist 39 that, “[i]f we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people . . . .” There are no powers to be derived and no government to be had when some, based on their ancestry alone, are treated as “others.” All slaves, including Mr. Scott, are not “others.” They, like all those who contribute to this country’s diversity, are our brothers and sisters. I dissent.

Walter Garcia is a first-year student at Northwestern Pritzker School of Law. 

NULR 1L Writing Competition: Fong Yue Ting v. United States (Critique)

Written by Meher Babbar

Photo by Miko Guziuk on Unsplash

The idea of diversity has influenced some of our country’s most important judicial decisions. We asked Northwestern 1Ls to write about a case they studied in their first year of law school that has affected their opinion about diversity in the legal system. Meher was one of the winners.

Of the cases covered in Constitutional Law tracing the expansion of federal power, none is more germane to the current national discussion on immigration and race than Fong Yue Ting v. United States. The Supreme Court decided the case four years after it upheld the Chinese Exclusion Act, which banned all immigration by Chinese individuals to the United StatesFong Yue Ting concerned the legislation’s successor, the Geary Act, which authorized executive officers to summarily deport any Chinese immigrant already present in the country who could not produce documentation of legal residence. Such documentation could only be obtained with the supporting testimony of a white witness. Fong Yue Ting and his co-plaintiffs were Chinese laborers who had maintained legal residence in the United States for over a decade, but, either refusing or unable to find a white witness to verify their presence, now faced deportation.

Fong Yue Ting argued that the Geary Act’s threat of deportation in the absence of a trial and opportunity for judicial review violated the Due Process guarantee of the Fifth Amendment. The Court rejected this contention, citing the federal government’s “absolute and un-qualified” right to deport non-citizens, regardless of their status or length of stay in the United States. Further, the Court reasoned that deportation was an administrative decision, not a criminal punishment and, as such, “the provisions of the constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures and cruel and unusual punishments, have no application.” In other words, non-citizens in the United States live under a separate legal regime from citizens, in which constitutional guarantees are in name only.

The Court’s judgement is surprising not only in its severity, but also how it echoes many of the assertions made in the contemporary debate over immigration reform. The notion that immigrants, even those lawfully admitted in times of peace, could be deported at any time without trial or opportunity for judicial review was novel in 1893, but is an accepted reality in 2019. Fong Yue Ting was the turning point which instituted the judicial deference that has since permitted Congress and the executive branch to transform deportation into a veritable and near-unassailable regime. The decision has been tempered only slightly by subsequent cases. Facially, Fong Yue Ting and the present reality of deportation are distinguishable—the former was in response to an explicitly racist and now-repealed law. Having never been overturned, however, Fong Yue Ting remains controlling authority in questions about the federal government’s near-unchecked power over deportation.

In light of recent events, the case’s implications are especially troubling. The announced repeal of the Deferred Action for Childhood Arrivals (DACA) program raises the same question posed by Fong Yue Ting: who truly belongs in America and whose presence is merely tolerated, revocable at a moment’s notice? Like the Chinese Exclusion Act, the government action surrounding DACA disproportionately targets and affects the lives of people of color. The connection between Fong Yue Ting and DACA, however, is not merely philosophical; pending litigation involving the repeal will likely rely upon the nineteenth century decision’s holding. The Supreme Court’s labeling therein of deportation as a civil, not a criminal offense is precisely what would empower the government today to deport DACA recipients with no more due process than notice from an executive officerFong Yue Ting’s racist legacy lives on.

Equally powerful in Fong Yue Ting were its vigorous dissents, which raise numerous counterarguments to a hardline stance on deportation. Justice Brewer’s dissent asserted that non-citizens had a right to trial when threatened with deportation, owing to the Fifth Amendment’s use of the word “person,” in guaranteeing due process. Justice Field concurred and found deportation to be “cruel and unusual punishment.” “As to its cruelty,” he wrote, “nothing can exceed a forcible deportation from a country of one’s residence, and the breaking up of all the relations of friendship, family, and business there contracted.” Express Constitutional authority would alone suffice to permit such a severe action and, “if it cannot be thus found, it does not exist.” The absolute right over deportation asserted by the majority, Justice Field contended, was the same that had permitted the expulsion of Muslims and Jews from Spain, the Huguenots from France, and the then contemporary banishment of Jews from Russia; he cautioned against sanctioning a similar, “act of barbarity.”

Justice Field predicted that unchecked federal power over deportation would, “establish a pure, simple, undisguised despotism and tyranny, with respect to foreigners resident in the country.” His prediction could not have been more prescient—the rate of deportation has ballooned from a little over 1,600 occurrences in 1893 to 340,056 occurrences by 2016. Fong Yue Ting’s sweeping grant of authority to the federal government over deportation was a landmark decision in constitutional law. Over a century later, its holding decides the fates of hundreds of thousands of immigrants, as it did those of Fong Yue Ting and his fellow laborers. The precarious existence of the non-citizen only reinforces his status as a perpetual foreigner: those, “of a different race,”—regardless of status or length of stay—“who will not assimilate with us.” The enduring relevance and influence of Fong Yue Ting demonstrates how far we still have to go with regards to diversity in the law.

Meher Babbar is a first-year student at Northwestern Pritzker School of Law. 

Sources of Rights: Originalism and Thayerism

Written by Joe Blass

brown mallet on gray wooden surface

Photo by Wesley Tingey on Unsplash

At Northwestern University Law Review’s Symposium on Originalism 3.0, Professor Steven Calabresi presented a paper critiquing a Thayerian approach to judicial handling of unenumerated rights. The session was moderated by Professor James Pfander, with commentary by Professor Jamal Greene of Columbia University Law School.

Professor Calabresi described James Thayer’s influential 1893 Article, The Origin and Scope of the American Doctrine of Constitutional Law, which posited that federal courts should only strike down laws that are clearly in error or are plainly irrational. Per Professor Calabresi, Thayer believed more aggressive judicial oversight had no constitutional grounding and would be bad for democracy. Courts have no business striking down a law for violating unenumerated rights. Per Thayer, the legislature defines the law and what rights are and are not protected, and a court should not use unenumerated rights to justify striking down such laws.

Professor Calabresi noted how influential this theory was, eventually partially codified as law in United States v. Carolene Products. Professor Calabresi argued that Thayerian principles guided the jurisprudence of Justices Holmes, Frankfurter, Byron White, and to a certain extent, Rehnquist, and was responsible for some of the worst decisions the Court ever handed down: Plessy v. Ferguson (upholding segregation), Debs v. United States (upholding a citizen’s imprisonment for criticizing war), Buck v. Bell (upholding the forced sterilization of a patient in a mental asylum), Korematsu v. United States (upholding the internment in concentration camps of hundreds of thousands of American citizens), Goesaert v. Cleary (upholding a law barring women from becoming bartenders), and more.  In each of these cases, Professor Calabresi argued, the Court upheld a law trampling upon citizens’ rights (usually unenumerated). Therein lay the dangers of Thayerian approaches to statutory interpretation.

Professor Calabresi offered an alternative. An originalist interpretation of the Constitution, including the meaning of the unenumerated rights protected by the Ninth Amendment, gives the Constitution its original public meaning. Courts cannot make new rights, but they especially cannot erase the rights that Americans in 1776 believed they had, which is what those previously mentioned decisions Professor Calabresi characterized as Thayerian did.  Professor Calabresi offered the Ancient Constitution, as discussed in the scholarship of John Phillip Reid, as an originalist source of unenumerated rights.

The Ancient Constitution describes a theory that England had a pre-Magna Carta constitution which, as the seventeenth century jurist Edward Coke argued, protected, among others, the right of liberty. This limited the sovereign from taking certain actions against citizens and was upheld by King Edward the Confessor. After the Norman conquest, William the Conquerer pledged to abide by Edward’s laws, but subsequent rulers strayed away from them; the Magna Carta was thus a restatement of Edward the Confessor’s laws.  Many of our nation’s founders read and were influenced by Coke’s writings, supporting the theory that not only did early Americans believe in unenumerated rights, but that the Ancient Constitution was a source for the content of these rights. Thus, unenumerated rights exist, are not inscrutable, and have ancient origins, and Courts are wrong to ignore these sources.

Professor Greene began his commentary by noting how nice it was to be able, just before a contentious election, to have a lively, civil debate, and everyone agreed. Professor Greene then moved on to the business of disagreeing.

First, Professor Greene noted that Professor Calabresi’s attack on Thayerism can be interpreted as a results-based objection, rather than an objection based in first-principles. This, Professor Greene noted, is not what is expected of a Calabresian originalist analysis.

Second, Professor Greene noted that it was not clear that the negative outcomes Professor Calabresi pointed to could be attributed to Thayerism as it is currently understood.  Modern Thayerians, Professor Greene noted, examine to which government institutions we should defer, and how much.  It’s hard to govern and it’s hard to protect rights. If pure originalism is all about rights, and pure Thayerism is all about governance, the interesting and difficult questions exist in deciding what to trade off and how.

Professor Greene made a point to note that several justices cited by Professor Calabresi were bigots, and that some of the cases discussed could be attributed not to a Thayerian view of judicial oversight, but to bigotry. Furthermore, many of the cases Professor Calabresi cited were written or joined by justices that considered themselves strict originalists. Justice Rehnquist was not a Thayerian; Korematsu cloaked itself in the language of strict scrutiny. Thus, calling these cases Thayerian runs counter to the theories of the justices deciding them.

Finally, Professor Greene criticized Professor Calabresi for inadequately drawing modern guidance from his historical analysis. Professor Calabresi’s argument, Professor Greene argued, only supports originalism abstractly, offering little guidance in resolving actual cases. Furthermore, he argued that acknowledging the existence of unenumerated rights, the importance of looking at outcomes, and the nature of intergenerational lawmaking are all good things to do but are not necessarily originalist approaches.

One audience member asked how, if the Ancient Constitution is a source of “vast unenumerated rights,” we are to discern what those rights are, since originalist thinkers seek clear sources of authority. Professor Calabresi suggested that one such source of rights are state bills of rights.

Another audience member asked whether Professor Calabresi was arguing that Thayer directly influenced the cases cited, or whether this was a critique of a generalized Thayerian approach. Professor Calabresi responded that Justices Holmes and Frankfurter were directly impacted by Thayer, but that the critique was of a generalized judicial approach.

Finally, Professor McGinnis argued that Thayer himself had originalist tendencies insofar as he believed the Constitution itself, at the time it was ratified, constrained judicial power. This, Professor McGinnis noted, is an originalist perspective.

A hush fell over the room, but tragically, the session was over time, and Professor Calabresi had no time for a public response. If any discussion of this point was subsequently had over coffee and scones, they did not reach the ears of this Law Review editor.

Professor Calabresi’s full article will be published in April 19, 2019 in the Northwestern University Law Review’s Symposium edition.

Joe Blass is a student at Northwestern Pritzker School of Law and Senior Notes Editor of the Northwestern University Law Review for the 2019–2020 Editorial Board.

Grounding Originalism: A Panel Discussion Moving from Legal Theory to Legal Practice

Written by Andrew Borrasso

We The people text

 

 

 

 

 

Photo by Anthony Garand on Unsplash

Is originalism correct? What might make it so? Grounding Originalism, a forthcoming Essay by Professors William Baude and Stephen E. Sachs, tackles these questions by moving from legal theory to legal empirics in an effort to provide a coherent story of our law.

On Friday afternoon, November 5, 2018, Professors Baude and Sachs were joined by Professor Michael Ramsey in a panel discussion about Baude and Sachs’s piece, Grounding Originalism. This panel was part of Northwestern University Law Review Symposium, Originalism 3.0, which focused on originalism’s latest scholarly developments.

As a group, the scholars at this year’s symposium explored originalism by offering new taxonomies, theories, and critiques. This panel focused on translating what is typically categorized as a legal or interpretive theory into empirically observable hypotheses. As Professor Baude explained: “One of the main goals of our paper was to redirect attention to the empirical question: what actually is the official story of our law? If it is not originalism, what is it?”

Professor Sachs, moderating, led off the panel discussion with a summary of the upcoming Essay. He explained that the Essay proceeds in three steps. First, Baude and Sachs detail why choosing a positive legal theory is justified. During the discussion, they suggested that their particular choice of H.L.A. Hart’s positivism functions as an illustration—a similar approach could be adopted for different positivist accounts without much difficulty.

Second, the authors situate a broad swath of originalist theories—generally those that embrace legal reasoning tracing back to the founding either by reference to the Constitution, to historical practice dating to the period, or to lawfully adopted changes enacted since then—within Hart’s positivism. Here, the authors argue that law is largely inferential in nature, which helps distinguish between official legal acts (for example, a judgment in a particular case) and official legal stories (i.e., official reasoning offered as a justification). The authors provide examples where official actors within the legal system may depart from the official, inferential, story of the law in order to facilitate all-too-human expediencies. Or, the authors suggest, given the deeply entangled nature of our law, official actors may remain ignorant in practice to a legal inference as a group, which explains how global departures from the official story may go unaddressed for periods of time. Ultimately, the official story consists of those rules by which the official actors within the legal system feel constrained.

Finally, the authors proceed to the third step of their project: their empirical claims. Several observations—including that judges tend to reject legal discontinuities from the founding and that there are not clear repudiations of originalism in Supreme Court case law—lead the authors to argue that what makes originalism our law is that our legal practice displays a deep commitment to the original law.

Professor Ramsay followed Professor Sachs and provided commentary. While appreciating the piece, his main inquiry focused on whether originalism encapsulated all of the official story of our law. Though he agreed that a large part of the law was empirically originalist, he suggested that there may be other portions of the official story: for example, when the Supreme Court uses nonoriginalist arguments to support legal decisions to members of the legal community who are not originalists.

Professor Baude concluded the panel’s introductory discussion by noting his appreciation for Professor Ramsay’s suggestions and describing additional avenues the paper may explore in subsequent drafts.

The panel closed with a lively discussion among the scholars in attendance. The conversation began with a colloquy focusing on the implications of choosing Hart’s positivism as a jurisprudential frame. Eventually directing their attention to the piece’s empirical focus, others explored potential difficulties in teasing apart the official story of the law from the official acts of its participants.

Professors Baude and Sachs’ full essay will be published in April 2019 in the Northwestern University Law Review.

Andrew Borrasso is a student at Northwestern Pritzker School of Law and Deputy Editor-in-Chief of the Northwestern University Law Review for the 2019–2020 Editorial Board.

Moving the Great Debate on Originalism Theory Forward

Written by Emily McCormick

book lot on black wooden shelf

Photo by Giammarco Boscaro on Unsplash

Georgetown Law’s Professor Lawrence B. Solum discussed his forthcoming article, Originalism versus Living Constitutionalism: The Conceptual Structure of the Great Debate,at the recent Northwestern University Law Review 2018 Symposium: Originalism 3.0. Professor William Ewald from the University of Pennsylvania provided commentary, and Northwestern Law Professor Joshua Kleinfeld moderated the panel.

Professor Solum began the discussion by sharing his inspiration for the article. While this article comprises part of a larger scholarly work in defense of originalism theory, Solum was inspired to write this article in part due to the uncertainty over what counts as “originalism.”

The goal of his metalinguistic proposal is to better frame the ongoing substantive debate between originalists and living constitutionalists about the best theory of constitutional interpretation. To this end, Solum provides conceptual definitions of “originalism” and “living constitutionalism” in the hopes of eliminating confusion about the boundaries of each theory. Solum defines “originalism” as a family of constitutional theories that affirm two principles: the Fixation Thesis (the meaning of the constitutional text is fixed at the time each provision is drafted) and the Constraint Principle (constitutional practice should be consistent with the original meaning). He then defines “living constitutionalism” as “nonoriginalist constitutional theories that affirm the view that constitutional practice can and should change in response to changing circumstances and values.”

In the interest of moving this substantive debate forward, Solum emphasized the importance of shared terminology and distinguishing domains of discourse: “If participants in the debates about originalism and living constitutionalism are talking past one another, it is difficult to identify what is really at stake in the debate, much less make progress in the clarification and resolution of the issues that are the focus of true substantive debates.”

In a lively question-and-answer session, audience members posed numerous questions related to the difficulty of defining living constitutionalism, which at a minimum encompasses twenty-two theories, and the differences between academic originalism and judicial originalism. While some of the heady theoretical debate about Thayer and Dworkin was above this second-year law student’s head, Solum’s proposal was persuasive; if academics and judges can agree on a shared set of conceptual definitions, the debate can focus on the issues that matter, namely the substantive and normative issues of which interpretation theory provides the most just outcome.

So, with this new shared conceptual framework as a starting point, which side is poised to win the great debate? That remains to be seen, but thanks to Professor Solum, we now have the conceptual vocabulary to ground the debate.

Professor Solum’s full article will be published in April 19, 2019 in the Northwestern University Law Review’s Symposium edition.

Emily McCormick is a student at Northwestern Pritzker School of Law and Symposium Editor of the Northwestern University Law Review for the 2019–2020 Editorial Board.

Truth, Lies, and Climate Change

Written by Juliet Sorensen

Image by Tumisu, CC0 1.0, via Pixabay

Notwithstanding the established death toll of 2,975 people in Puerto Rico from Hurricane Maria, President Trump persists in asserting that it is limited to double digits. But Trump is hardly the first national leader to prevaricate when it comes to the consequences of extreme weather. World leaders lie about the costs and consequences of extreme weather and climate change because they are motivated to do so, and—with the exception of blatantly false statements like Trump’s—their lies are difficult to expose.

The motive rests in the powerful repercussions of climate change, and the cost of addressing them. As a result of climate change, the world is dealing with rising sea levels, temperature increases and heat waves, intense storms, hurricanes and cyclones, sea acidification, melting glaciers, extreme drought and far-reaching changes to ecosystems that can cause species extinction.  The human impacts of climate change include loss of lives, homes, and infrastructure due to flooding, storms and sea level rise, health impacts due to temperature increases that spread disease, hunger due to crop damage and new pests, and loss of access to clean drinking water due to drought. This is heavy stuff, resulting in outcries and demands for accountability from local and national leaders; the post-earthquake uproar in Indonesia following the revelation that none of the twenty-two buoys spread over Indonesia’s open water to help monitor for tsunamis had been operational for the past six years is but one instance.

The effects of climate change can also trigger financial obligations pursuant to the United Nations Framework Convention on Climate Change (UNFCC). The price tag of slowing down climate change by reducing emissions, primarily through investing to construct wind and solar power facilities and to protect the world’s forests, is about US$300–400 billion per year. A fundamental feature of the UNFCC is “climate finance,” money drawn from public and private sources of financing that seeks to support mitigation and adaptation actions to address climate change.

The “polluter pays principle” of the UNFCC means that industrialized nations— who have historically contributed the most to global warming—should compensate developing countries for climate change’s damaging effects, as well as the costs of mitigating and adapting to them. Upon signing the UNFCC in 1992, developed countries (including the United States) agreed to provide significant financial support for mitigation and adaptation action in developing countries. The Paris Agreement of 2016 finalized targets for finance and emission reductions. The United States is a party to the UNFCC. However, on June 1, 2017, it withdrew from the Paris Agreement and ceased to implement its terms, including the Nationally Determined Contributions and financial contributions.

Examples abound of “polluters” who are motivated to conceal the extent of environmental damage for which they are responsible. For instance, China quietly acknowledged in 2015 that it had been using up to 17% more coal a year than reported. By some estimates, that means almost a billion more tons of carbon dioxide released annually. In addition to underreporting, another method of concealment is quid pro quo corruption; polluters may attempt to avoid paying under the carbon offset framework by bribing those determining country contributions. With two consenting parties to the bribe, such corruption is difficult to expose.

Not only is the amount of money involved in climate finance enormous, but the path it travels from donor to recipient is complex. To get climate finance off the ground, the United Nations (UN) has created the Green Climate Fund, a clean energy investment vehicle. This fund and others like it do not channel funding directly to recipient countries, but rather through a bevy of banks and UN agencies, as well as national level actors.

As shown by the Volkswagen “diesel dupe,” increased regulation in the realm of pollution can lead to fraud and corruption to avoid it. Where there are significant amounts of public funding available, there is greater risk of corruption in the administration of those funds. Moreover, detection in a complex regulatory setting is all the more difficult. When hundreds of millions of climate finance dollars flow in a circuitous route from donor to recipient countries, the risk of climate funds being frittered away pursuant to fraud, waste or abuse is unavoidable.

How to guarantee truth in the causes, costs and consequences of climate change? First, climate finance must be transparent. It is imperative to be able to track climate finance flows and advocate for stronger protections to ensure that efforts to adapt to and mitigate the impacts of climate change are not hampered by corruption. Implementation of the Paris Climate Change Agreement is key to transparency, as the Agreement’s implementation guidelines are needed to unlock transparent and practical climate action across the globe, including finance, technology and capacity building. The implementation guidelines have been under negotiation since 2016, and they are set to be adopted at the 24th annual Conference of Parties to the UNFCC (COP24), to be held in Poland in December of 2018.

Second, climate finance must be accountable. Corruption and mismanagement must be, if not prevented in the first instance, then exposed and addressed. The Green Climate Fund has an internal body that investigates allegations of fraud and misconduct; this is necessary, but insufficient. Parties to the UNFCC must commit investigative and legislative resources to addressing corruption in the realm of the environment in their own countries.

An era of climate change and extreme weather has arrived. It is incumbent on heads of state and parties to the UNFCC to adapt to this era and seek to mitigate its effects. Transparency and accountability are essential in stemming the damage caused by climate change. Nothing less than life as we know it hangs in the balance.

Juliet S. Sorensen is a Clinical Professor of Law and the Director of the Bluhm Legal Clinic at Northwestern Pritzker School of Law. She is the author of Public Corruption and the Law: Cases & Materials (West Academic 2017) (with David Hoffman) and Corruption in an Era of Climate Change: Rebuilding Sint Maarten After Hurricane Irma (Small Island Developing States Research Platform 2018) (with Cindy Gerges, Gerry Hirschfeld, Claire Hutar, Elise Meyer, and Garrett Salzman).

The Poison Pills: Is Trump Negotiating NAFTA’s Dissolution?

Written by Jaime Zucker

Image by TheMexicanGentleman [Public domain], Wikimedia Commons
Following informal talks in Washington at the beginning of April, NAFTA negotiators missed another deadline when they were unable to resolve key issues in the renegotiation in time for the Summit of the Americas. Missing deadlines due to deadlock has been a recurring theme of the renegotiation process, which began back in August 2017. Since calling NAFTA the “worst trade deal ever made,” President Donald Trump has pursued an aggressive negotiation strategy, which appears to tip the balance of the treaty in favor of the U.S., but in reality his efforts are calibrated to kill the deal altogether. Although negotiators are optimistic that a deal could be reached in early May, unless the U.S. delegation backs off the auto manufacturing and sunset clause provisions, the “poison pills,” a workable renegotiated treaty is simply an impossibility.

The renegotiation took an unexpectedly hopeful turn on March 20th when the U.S. government dropped a controversial origination provision. The rule would have required vehicles that are manufactured in Mexico or Canada for export to the U.S. contain at least 50% content originating in the U.S. Not only was this demand unusual for a free trade agreement, which on principle do not explicitly favor one country over another, but it was also practically impossible to carry out as the U.S. lacks the materials to source that much auto manufacturing content. Including the provision in the treaty would have essentially eliminated the tariff protections on automobiles, which can cross the U.S.–Mexico border as many as eight times during production.

Dropping the 50% origination demand was a step forward in the renegotiation, but the U.S. is still insisting on an increase in the requirement for content produced in the NAFTA territories from 62.5% to 85%, and is pushing a new plan which would “ensure that a certain percentage of work in the [auto] industry is sourced from ‘high salary’ areas.” The new provision is an attempt to shift manufacturing work from Mexico, the seventh largest auto manufacturer in the world, to the U.S.

The second controversial provision proposed by the U.S. is a sunset clause which would kill NAFTA every five years, requiring a renegotiation if the parties choose to extend the treaty. The strongest objection to the sunset clause comes from Mexico, a hub of foreign direct investment, which fears that a treaty that risks dissolution every five years will make investors reluctant to make long-term plans in the region.

Although Mexico and Canada are an unusual voting bloc, both countries have remained firm in their refusal to accept a treaty which includes either the original auto manufacturing proposal or the sunset clause. The two provisions were characterized by U.S. Chamber of Commerce President Thomas Donohue as “poison pill proposals . . . that could doom the entire deal.” They are provisions which Canada and Mexico simply cannot justify to their ratifying bodies, which means the three nations will not approve a version of the treaty that incorporates these provisions. While it may look like the U.S. is participating in the renegotiation to save the treaty, by characterizing these provisions as deal-breakers, the U.S. has created a situation in which the only feasible outcome is NAFTA’s dissolution. Unless the U.S. delegation continues to soften its strategy by dropping or modifying its position on the auto manufacturing content and the sunset clause, NAFTA will cease to exist.

From Somers to Winter: Chilling Internal Whistleblowing in Private Companies

Written by Timothy Wilson

Image by Russ Allison Loar, CC BY-NC-ND 2.0.

On February 21, 2018, the Supreme Court issued its opinion for Digital Realty Trust, Inc. v. Somers—a landmark decision denying Dodd-Frank anti-retaliation protection for internal whistleblowers in private companies. Congress passed the Dodd-Frank Act in 2010, intending to “promote the financial stability of the United States by improving accountability and transparency in the financial system.” The law came eight years after Sarbanes-Oxley (SOX)—an act that empowered whistleblowers to play a pivotal role in catching corporate fraud in public companies and expanded whistleblower protections to private company employees.

Even before SOX and Dodd-Frank, internal whistleblowers were essential in weeding out corporate fraud in the financial markets. For instance, Sherron Watkins, an internal whistleblower, was the first to alert management of Enron’s off-book financing entities which eventually triggered an SEC investigation and the company’s subsequent demise. Recognizing the importance of such whistleblowers, SOX prevented companies from retaliating against any employee who reported issues of fraud not only to regulators and law enforcement but also to any “person with supervisory authority over the employee.” But SOX only covered public companies, and by 2010, in light of the Great Recession, Congress recognized the need to expand protections to whistleblowers in private companies in order to support the SEC’s onerous task of ridding corporate America of fraud.

The Dodd-Frank Act extended whistleblower protections to employees of private companies, but more narrowly defined a whistleblower as one who provides “information relating to a violation of the securities laws to the Commission.” Despite the seemingly clear definition requiring a report to the SEC, the Commission noted the tension between the Act’s definition of a whistleblower and a subsequent subsection that afforded whistleblowers anti-retaliation protection for making a report allowed or required by SOX. The SEC promulgated its own rules to state that for purposes of the Act’s anti-retaliation protection, plaintiffs did not have to report to the Commission first; internal reporting was sufficient. Plaintiffs quickly latched onto these rules to state a cause of action when their employers retaliated against them.

A circuit split quickly ensued. In Asadi v. GE Energy LLC, the Fifth Circuit found the language of the Act to be sufficiently clear so that Chevron deference was inapplicable. Soon after, in Berman v. Neo@Ogilvy LCC, the Second Circuit held that the language was sufficiently ambiguous, and required deference to the SEC’s interpretation. Then, in Digital Realty Trust, Inc. v. Somers, the Ninth Circuit followed the Second Circuit and deferred to the SEC’s rules. Despite the seemingly clear language of the Act’s definition section, by the time the Supreme Court heard arguments in Somers, the majority of district courts were deferring to the SEC’s interpretation.

The Supreme Court unanimously held that the statutory text was clear, and therefore, it was inappropriate and unnecessary to defer to the SEC’s interpretation of the Act. While the Court’s holding settles the legal issue, there is an open question of what, if anything, Congress will do to protect internal whistleblowers in private companies. The SEC handles over 4,000 calls a year, and internal whistleblowers can help weed out frivolous claims, thereby enhancing the Commission ’s enforcement efforts. The Court’s decision makes it more difficult for companies to remediate issues internally or choose to self-report when necessary. While employees of private companies can still choose to report directly to the SEC and benefit from Dodd-Frank’s anti-retaliation protections, encouraging employees to circumvent internal compliance systems may prove counter-productive.

Section 230 and Fake News

Written by Joshua Yim

Image by Book Catalog, CC BY-NC-ND 2.0.

Facebook brands itself as a company that aims to “give people the power to build community and bring the world closer together.” However, following the 2016 presidential election, the social media platform has come under growing scrutiny as part of a larger concern of Russian interference in the election. That concern is culminating this week with Facebook founder and CEO, Mark Zuckerberg, testifying in Congress regarding Facebook’s alleged violations of user privacy in its dealings with the political data mining firm Cambridge Analytica. Facebook has also been tied to Russian disinformation campaigns designed to manipulate the 2016 election, termed “fake news.

Despite growing public outcry for Facebook to be held accountable for content disseminated through their service, it is largely shielded from liability by Section 230 of the Communications Decency Act. Section 230 of the Act dictates that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In Zeran v. America Online, Inc., the Fourth Circuit noted that Section 230 was enacted with the intent to remove disincentives to self-regulation created by previous decisions which suggested that service providers assumed an editorial role with regard to user content, thus becoming publishers who were legally responsible for libel and other torts committed by users. The court in Zeran noted that without Section 230, online platforms who “regulated dissemination of offensive material on their services risked subjecting themselves to liability, because such regulation cast the service provider in the role of a publisher.”

While Section 230’s broad immunity for online services was intended to prevent the “obvious chilling effect” caused by the threat of tort liability-if services such as Facebook were required to monitor every message republished on their platform-the same sweeping immunity has led to new problems over 20 years later. The integration of social media into modern life has also led to an increase in cyberbullying, harassment, and abuse through the platforms that were intended to bring people together. Lawsuits have even been brought accusing social media of fostering terrorist activities. Under Section 230 of the Act, victims of such online activity have little civil recourse. Additionally, the proliferation of social media in our daily lives means that a growing segment of the population turns to its social media feeds for news. This reliance on social media as a news source makes the spread of fake news and political misinformation on these sites particularly problematic.

Social media companies such as Facebook, Google, and Twitter have always held themselves out as neutral platforms for the sharing of information. The government has largely left them to self-police. However, Section 230 of the Communications Decency Act removes a key incentive for such platforms to fully accept responsibility for content disseminated through their sites and police for harmful content.

Some have forwarded that Section 230 is analogous to protections given to gun manufacturers from legal responsibilities caused by their product. Others view Section 230 as a protection of the freedom of online speech and believe that modifications will result in a dramatic chilling of speech. In any case, the chilling of Internet activity that Section 230 was intended to prevent is arguably less salient over 20 years after its enactment. Serious consideration should be given to overhauling Section 230 in order to create the impetus for social media sites to police for abusive, damaging, and false information promulgated through their platforms. Section 230 does not need to be abolished completely, but its broad protections need to be more carefully tailored to meet current needs.

Opioid Litigation Nationwide May Leave States with New Funding to Combat the Epidemic

Written by Nina Terebessy

Image by frankieleonCC BY-NC-ND 2.0.

As the country continues its efforts to combat the opioid epidemic, states are poised to receive new sources of funding from lawsuit settlements with drug distributors. Following the success of a claim in 2007 against Purdue Pharma, hundreds of plaintiffs—ranging from small towns and counties to larger cities and states—are joining the wave of litigation. To speed up the process, many of these cases have been consolidated; one federal judge in the Northern District of Ohio is currently presiding over more than 400 suits, in what some believe could be the largest multidistrict litigation in history. Many of the lawyers representing plaintiffs in the MDL met this month at a conference in San Francisco to share litigation strategies and discuss the possibility of a nationwide settlement.

The prospect of such a large payout leaves states and municipalities with a new dilemma: how best to spend the funds. Some have noted the similarities to a settlement reached two decades ago with the tobacco industry, involving an agreement to pay $206 billion to states over a span of 25 years. While there was a clear assumption that states would use the funds for anti-smoking campaigns and other public health initiatives, many states spent only a small fraction of the money on tobacco prevention. One senior attorney for the National Health Law Program voiced concerns that payments from opioid settlements will be diverted in a similar fashion. However, early signs suggest that there is a concerted effort among states to ensure that the money is being used to directly address the opioid crisis. For example, West Virginia, which had the highest rate of opioid-related deaths in the nation in 2016, has already set aside over $20 million from lawsuit settlements with drug distributors to fund the expansion of nine substance abuse treatment programs scattered throughout the state. Lawmakers and pubic officials in other states, including Illinois, Michigan, and Kentucky, have signaled similar commitments.

Although most of the opioid lawsuits are still working their way through the courts, it is possible that these spending decisions will be made in the coming months. Judge Polster, who is overseeing the MDL proceedings in the Northern District of Ohio, indicated during a hearing in January that he was interested in reaching a wide-sweeping settlement as quickly as possible: “[m]y objective is to do something meaningful to abate this crisis and to do it in 2018.” While this potential funding is certainly not the only solution to the epidemic, it is an opportunity for states and local governments to offset the estimated hundreds of billions of dollars spent each year addressing the crisis.