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.

Article III Standing in Biometric Privacy Suits

Written by Arian Soroush

Image by The U.S. Army, CC-BY 2.0 License.

As the use of biometric technology has grown increasingly prevalent in our everyday lives, the legal issues surrounding its use have rapidly developed. Ranging from facial recognition technology employed by social media providers to fingerprint technology adopted by employers, biometric technology has important societal implications. While many find ease and benefit in its uses, others sense a justifiable wariness over its proliferation. Biometric technology consists of an individual’s private and unique biologic identifiers. Such information in the hands of large companies poses concerns regarding what those entities do with that private information and, more importantly, what might happen if that information ends up in the hands of nefarious third parties.

With these rising concerns, many individuals have brought suit against companies and employers for their use of biometric information. With its passage of the Biometric Information Privacy Act (BIPA), Illinois is the only state to have enacted a statute that allows a private right of action for biometric privacy violations. Many of these suits have transformed to class actions, often alleging defendants’ violations of BIPA’s procedural requirements of notice and consent. Defendants, as a strategy to dismiss these claims, try to remove cases to federal courts where Article III standing requirements pose a substantial hurdle to BIPA plaintiffs.

Article III’s injury-in-fact requirement for standing has long been a source of litigation in federal courts. To establish injury-in-fact, a plaintiff must show he suffered an actual, concrete harm to a legally protected interest. A defendant’s violation of a statutorily-created right, alone, does not necessarily constitute an actual, concrete injury to a plaintiff. While legislatures can create a legally cognizable interest through a statute and its procedural requirements, a plaintiff can only obtain Article III standing if that statute’s procedural requirements were designed to protect a concrete, private interest of the plaintiff. The question then becomes whether BIPA and its requirements aim to protect a concrete, legally recognized consumer interest and whether violations of BIPA’s various provisions amount to an actual, concrete harm that warrants Article III standing.

The Supreme Court’s 2016 opinion in Spokeo v. Robins provided valuable guidance for properly conducting a concrete harm analysis for alleged intangible harms, noting that bare procedural violations, without evidence of actual injury, do not warrant Article III standing. Yet, the Spokeo ruling left considerable uncertainty as to what types of alleged injuries are sufficient for standing when no actual damages are alleged. This uncertainty extends to biometric privacy claims, where plaintiffs generally invoke procedural violations and seek statutory remedies under Illinois’ Biometric Information Privacy Act, often without alleging any actual damages. There has not yet been significant literature on how these standing issues apply in biometric privacy suits, and case law development in the wake of Spokeo’s holding has been scant. Some federal courts have begun to address BIPA claims with Spokeo in mind, but with seemingly conflicting outcomes. Nonetheless, the jurisprudence of Spokeo, as well as important policy considerations, reconciles this conflict and suggests a rejection of standing for plaintiffs that bring biometric privacy suits alleging BIPA procedural violations, especially when the alleged BIPA violations did not actually result in an injury to the plaintiff(s).

BIPA does not appear to create a concrete legal interest, but rather resembles a regulatory statute that addresses a general, public interest in controlling the dissemination and storage of biometric data. Even if it did explicitly protect a concrete interest, violations of its procedural requirements likely will not evidence a concrete and actual harm. There are some exceptional circumstances, for example, if someone is tagged in an embarrassing photo without his consent that leads to his termination from work. However, more common allegations of procedural violations will not suffice. Unlike plaintiffs suing companies for data breaches where third parties likely obtained such data for nefarious purposes such as identity theft, BIPA plaintiffs alleging a company’s failure to comply with BIPA procedure can rarely show a significant risk of nefarious misuse of their biometric data.

Brendan Dassey Asks Supreme Court to Hear His Case

Written by Elizabeth Wurm

Image by Tracy Symonds-Keogh (CC BY-SA 4.0), via Wikimedia Commons

Brendan Dassey, who gained national recognition in 2015 from Netflix’s “Making a Murderer” docuseries, is now bringing his story to the U.S. Supreme Court. Dassey’s attorneys, Laura Nirider and Steve Drizin, co-directors of the Center on Wrongful Convictions of Youth at Northwestern’s Bluhm Legal Clinic, recognize the uphill battle that Dassey faces in getting the Supreme Court to grant a petition for certiorari. “But if there ever was a juvenile confession case that the court should hear, this is it,” Nirider commented.

Dassey was convicted in 2007 by a Wisconsin state court along with his uncle, Steven Avery, for the rape and murder of Teresa Halbach. At the time of the murder, Dassey was sixteen years old, had an extremely low IQ, was in special education classes, and had social limitations. At trial, the only evidence used to convict Dassey was a videotaped confession made during an interrogation interview of Dassey by two local police detectives.

In 2014, Dassey’s attorneys filed a federal habeas petition asking the federal court to reconsider the Wisconsin Court of Appeal’s decision upholding the denial of Dassey’s motion to suppress the confession. Dassey argued the confession was involuntary and coerced, and therefore unconstitutional. The videotaped confession, shown in “Making a Murderer,” outraged millions of viewers as they watched investigators subject Dassey to psychological and coercive interrogation techniques. Detectives continuously fed facts and suggestions to Brendan, telling him if he told the “truth,”—which was carefully crafted to only mean what the investigators wanted to hear—he would be free. Eventually, investigators extracted from Dassey a convoluted and internally inconsistent account of him and Steven raping, killing, and mutilating the body of Teresa Halbach. The petition challenges the state court’s failure to properly evaluate the voluntariness of this confession.

I work in the Bluhm Legal Clinic as part of the Center on Wrongful Convictions team and I spoke with Drizin and Nirider regarding their recent petition for certiorari to the U.S. Supreme Court, which was filed on February 20th, 2018. The petition was filed after the Seventh Circuit, sitting en banc, reversed its panel decision and ruled in favor of Wisconsin in December 2017.

Although the loss was a blow, Drizin and Nirider had already discussed the likelihood of a certiorari petition from one side or the other. “We always knew the case was going to end up in the Supreme Court,” Drizin noted. The clinic and its students sprang into action shortly after the en banc decision was issued. Drizin and Nirider knew that at this stage it was critical to add a litigator with experience arguing before the Supreme Court to their team. They immediately thought of former Solicitor General Seth Waxman, who has argued seventy-five cases before the Supreme Court. Waxman and a dedicated legal team from his firm, WilmerHale, worked with Drizin and Nirider to prepare the petition, a process which took about two months. Drizin expressed that the opportunity to work with Waxman and his team, as well as “an amazing group of lawyers who are writing amicus briefs,” has been one of the most exciting aspects of the entire process.

The voluntariness of a confession is determined by evaluating the “totality of the circumstances” surrounding the confession. Seventy years ago, the U.S. Supreme Court declared that the totality of the circumstances calculus in the juvenile context mandates that courts evaluate the voluntariness of juvenile confessions with “special care.”

It has been nearly forty years since the Court last addressed a juvenile involuntary confession case. In his petition, Dassey emphasizes this long gap as well as the advances in social science research demonstrating the prevalence of involuntary confessions by juveniles and people with intellectual limitations. Dassey asks the Court to reaffirm the Court’s holdings in Gallegos, Gault, and Fare, requiring courts use special care in juvenile confessions. “Too many courts around the country, for many years, have been misapplying or even ignoring the Supreme Court’s instructions that confessions from mentally impaired kids like Brendan Dassey must be examined with the greatest care,” said Drizin.

The momentousness of the petition, not only for Dassey, but for countless other juvenile defendants, hasn’t escaped Dassey’s lawyers. “If the Court accepts cert., it will mean that a landmark decision will be issued—the first time the Court has addressed “voluntariness” in a juvenile confession case in almost forty years,” Drizin told me. The Court is expected to decide later this summer whether to hear the case.

 

Nondisclosure Agreements and the Executive Branch

Written by Edward Day

Image by Lori Shaull, CC-BY 2.0 License.

Under normal circumstances, “Porn Star Sues Wealthy Billionaire” seems like a headline made for the tabloids, if worthy of being a headline at all. But as many Americans now know, the legal battle between Stephanie Clifford (aka “Stormy Daniels”) and President Donald Trump has become one of national importance. The allegations are scandalous, and likely to receive press out of public fascination more than its probative value. But for the study of law, the case recently filed in the California Superior Court is a rare opportunity to discuss nondisclosure agreements and the scope of privacy entitled to the President of the United States.

A nondisclosure agreement (NDA) is a contract between private parties to keep specified information confidential. NDAs are commonly used in the business setting to protect trade secrets or other proprietary information. They can also be used in conjunction with a settlement to “hush” one party from disseminating potentially embarrassing or damaging information. The NDA that Ms. Clifford signed falls into this second category.

Ms. Clifford argues that the NDA is invalid because the other party, listed only as “DD,” did not sign the agreement. DD is widely understood to be President Trump. The NDA states in part that “any unauthorized use, dissemination or disclosure of Confidential Information” would cause various injuries, both personally and professionally, to President Trump. Ms. Clifford claims that this confidential information includes an alleged affair she had with President Trump. Key to any NDA are the remedies provisions. If Ms. Clifford violates the NDA, she is liable for $1,000,000 in liquidated damages for each instance. This liability is a driving force behind her legal challenge to invalidate the entire agreement, as President Trump and his attorney claim Clifford is liable for $20,000,000.

To understand why the NDA is so important to President Trump, it is worth considering what his legal recourse would be if a court invalidated the agreement. Without an NDA allowing parties to sue under contract law, President Trump would have to sue in tort. President Trump might try to claim that some information was a “public disclosure of private fact,” and seek damages from Ms. Clifford, or the first publisher to break the story. A public disclosure of private fact is an offensive intrusion into one’s privacy by revealing to the public truthful information that a reasonable person would want to keep secret, and is not a matter of legitimate public concern. While Ms. Clifford has the right to tell the world about her own experience of having an affair, there are presumably other intimate aspects of President Trump she would have learned. Many secrets can be revealed in a private setting, and the public by and large would get along just fine without knowing them.

Unfortunately for President Trump, the California Supreme Court held in the 1998 case Shulman v. Group W Productions, Incthat information’s “newsworthiness” can sometimes justify an otherwise discouraged or unlawful disclosure. As long as there is a logical “nexus” between the disclosed information and a larger matter of public interest, the disclosure is okay. President Trump was already an international television personality by the time of the alleged affair in 2006. A court in 2006 could have easily found a logical nexus between his behavior during the affair and his public persona. Now, as President of the United States, nearly all of his current and past actions can be logically tied to his ability to perform his duties, a matter of utmost public concern. If this tort were litigated in the same California court as the NDA is today, President Trump would likely lose. But with the NDA, he could walk away with $1,000,000 per breach. This stiff financial penalty does much more to silence Ms. Clifford than the threat of a tort suit she would likely win.

While an NDA might be good for President Trump in this circumstance, it enables him to contract around the newsworthiness interests that the Shulman court sought to protect. There are general benefits to the wide dissemination of information regarding matters of public concern. Access to more information allows the public to better understand issues of importance. It remains to be seen whether the “Stormy Daniels Scandal” will be a defining moment of the Trump presidency, and it is not immediately clear if it even relates to President Trump’s ability to fulfill the duties of his office. But if Ms. Clifford had chosen to honor the NDA, the public would have never had the opportunity to evaluate her story and determine its significance.

President Trump requires that White House staff sign NDAs as a condition of their employment, a practice he chose to continue from his time running the Trump Organization. The NDAs are largely symbolic because there are no monetary damages provisions. Even though there are no contractual penalties if a staffer chooses to speak, the message is clear. President Trump expects an extra level of privacy beyond what has been seen with past administrations. With the President contracting for privacy with so many of his associates, one is left to wonder what else the public does not know about.

Perceptions of Misperceived Race

Written by Patrick Telles

Image by AdrienneCC BY-NC-ND 2.0.

In recent years our federal courts have taken steps to address racial discrimination by emphasizing what has been called colorblindness––the idea that our laws should achieve racial equality by eliminating racial categories. While this catchall solution addresses a majority of racial discrimination claims, it fails to properly address misperceived racial discrimination. In cases involving misperceived race, an individual claims that he or she has been discriminated against in some way based on the racial identity that others have imputed onto her, despite her identifying as a different race. Misperceived race cases and how courts define race has produced conflicting outcomes across different areas of law.

Issues of misperceived race have been seen predominantly in Title VII employment discrimination cases, and federal courts are currently split on how to handle this unique issue. A majority of the federal courts address misperceived race in employment discrimination by attempting to identify the plaintiff’s “actual race.” If that “actual” racial identity does not match with the discriminators’ perception of the plaintiff’s race, then courts find there was no discrimination under Title VII. These courts may be using “actual race” because Title VII lacks statutory language protecting against discrimination of perceived traits. In contrast, a minority of federal courts have viewed discrimination of perceived race as a form of discrimination based on race, and therefore is protected by Title VII.

While the majority of federal courts using the “actual race” standard have good reasons for doing so, it is important to note that their reasoning comes into direct conflict with how immigration law defines race in asylum hearings. In asylum hearings, an asylum-seeker must show that she has faced persecution in her country of origin or has a well-founded fear of future persecution upon return to her country of origin. This persecution must be based on at least one of five nexus factors: race, religion, nationality, membership in a particular social group, and political opinion. While neither the Board of Immigration Appeals (BIA) nor any federal circuit courts have specifically found that persecution based on misperceived race falls within the nexus factors required to be eligible for asylum, case law strongly implies it is included. In 1996, the BIA decided in In Re S-P- that “[p]ersecution for ‘imputed’ grounds (e.g., where one is erroneously thought to hold particular political opinions or mistakenly believed to be a member of a religious sect) can satisfy the ‘refugee’ definition.” Because courts have not reviewed the issue of persecution based on imputed grounds since In Re S-P-, there has been no official ruling expanding persecution for imputed grounds to race. However, it is important to note that federal circuit courts have expanded In Re S-P- to encompass the other nexus factors of religion, nationality, membership in a particular social group, and political opinion. Based on this, it is only a matter of time that persecution based on imputed race is accepted as plausible grounds for asylum under immigration law.

When comparing these perspectives of race, the potential conflicting interpretations of race become apparent. A majority of jurisdictions look to an individual’s “actual race” when considering employment discrimination, whereas the BIA and federal circuit courts are moving toward recognizing perceived race in asylum hearings. If the BIA does extend the imputed grounds to race, the rulings may produce the strange result that asylum hearings offer broader protection to individuals entering the U.S. than employment discrimination offers to U.S. citizens from actions occurring within the U.S. Ultimately, if this conflict occurs, it should be addressed through either the judiciary or legislature in a manner that creates more consistency between immigration and employment law.

 

Software Innovation After Alice

Written by Christopher Shoup

Image by You Belong In Longmont, CC-BY 2.0 License.

The Supreme Court decided Alice Corp. v. CLS Bank Int’l in June 2014, a decision which greatly restricted the scope of patentability for software innovations. The case concerned an electronic escrow service—a computer program that acted as a “third party intermediary” between two negotiating parties and ensured that both would meet their financial obligations. The primary question for the Court was whether the patents were for “abstract ideas” and thus ineligible for patent protection under 35 U.S.C. § 101. The Court decided the inventions were not eligible for patent protection, holding that the claims merely “implement[ed] the abstract idea of intermediated settlement on a generic computer”.

Unsurprisingly, this holding – that software that applies well-known actions is patent ineligible – has profoundly impacted the state of software patents in the United States. Already-issued patents have felt the most tangible impacts of the decision; as of 2016, a total of 378 software patents have been invalidated out of a total of 568 challenges (66.5%). A loss in patent protection could, at the very least, be expected to hamper innovation and growth in the software industry. However, the industry’s metrics since Alice was decided in 2014 demonstrate that did not happen. In fact, the software industry appears to be thriving both in growth and patent applications.

According to CompTIA, after the Alice decision in 2014, the software industry witnessed a remarkable increase in job opportunities. The number of job opportunities increased over 50%—from just above two million to nearly 3.5 million openings. In 2016, the number of positions was still 2.5 million. While the number of employment openings lowered in 2016, it still remained above the pre-Alice numbers. Additionally, the Bureau of Labor statistics has predicted that software publishers would feature the highest rate of growth of real output, at 4.7% annually until 2024. The projections also placed the rate of salaried employment growth at 2.3%. Lastly, just looking at the USPTO data shows that the number of software patent applications has remained relatively consistent with all other patent categories. From the above data, it appears that Alice’s impact on the viability of software patents was lower than expected, or even non-existent.

One explanation for these results is that the software industry features a higher level of internal motivation to spur development, despite less extrinsic incentives (patent protection). An example of internal motivations is the rise of open-source software, the development strategy wherein software developers and rights owners provide the source code and licenses to modify/utilize the code for free to the public—essentially treating software as a public good. When open-source developers seek patents, they typically do so not out of desire for licensing, but rather out of defensive necessity. The process is known as defensive patenting and typically includes the issuance of non-enforcement statements, which are promises that a patentee will not sue others for infringement of the patent. Further, such software developers typically contract “patent peace provisions” that prohibit contributors to the code from attacking one another, or even the original patent holder. Overall, the example of open-source development may imply that software developers care less for the monetary benefits of patents and are therefore less impacted by the restriction Alice placed upon the art unit.

Overall, the lasting impact of Alice has yet to be seen in the four years since the decision. Even with the Court’s harshly anti-software stance, the software industry appears to be flourishing. The high level of independent motivation present in software development is one possible explanation for this resilience.