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.”

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.

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.”

Where in the World is Russian Doctor Grigory Rodchenkov?

Written by Kelsey Chetosky

In July 2017, Russia’s Investigative Committee charged Russian Dr. Grigory Rodchenkov with “abuse of official powers,” alleging that he had destroyed Russian athletes’ doping tests in the 2014 Winter Olympics in Sochi. On September 28, 2017, the Russian Ministry issued a warrant for Rodchenkov’s arrest.

However, one year prior to the Russian Investigative Committee’s allegations, Rodchenkov fled from Russia to the United States with the help of American filmmaker Bryan Fogel. Rodchenkov entered the United States Witness Protection program in January 2016.

So, why would an American filmmaker help a doctor accused of cheating in the 2014 Winter Olympics flee Russia?

The Documentary and Bryan Fogel’s Discovery

Icarus Movie PosterBryan Fogel’s Netflix documentary, Icarus, answers this question. This unlikely partnership started when Fogel began investigating doping trends in professional cycling. After learning about Lance Armstrong’s longtime use of performance-enhancing drugs, Fogel, an amateur cyclist, enlisted a team of doctors to help him “dope up” in order to win a prestigious amateur race called the “Haute Route.” Fogel hoped to prove that he could win the race with help from chemical enhancements. As he states in his documentary, “Originally, the idea I had was to prove the system in place to test athletes was bullshit.”

After discussing his plans with many doctors, he was introduced to Dr. Grigory Rodchenkov, who was then the Director of Moscow’s World Anti-Doping Agency (“WADA”) Laboratory. Rodchenkov offered to help Fogel navigate his way through a complex regime of steroids and anti-aging hormones. Over the next few months, Fogel injected himself with the drugs on a daily basis, which put him on track to compete with the top cyclists.

The documentary took an unexpected turn in November 2015 when WADA released a report tying Rodchenkov to state-sponsored doping efforts in Russia. Realizing there were much bigger issues at play, Fogel did what any good investigative filmmaker would do—he followed the story.

The Russian Doping Scheme

“Bryan, it’s a disaster, they’re killing people, cutting heads,” Rodchenkov told Fogel via Skype, describing the fallout after the Russian government received news of the WADA report. In the documentary, Rodchenkov admits to helping Russian Olympic athletes conceal positive urine samples at the 2014 Winter Olympics, but claims that Russian officials forced him to do it. He describes at length how members of the Russian intelligence service helped break into supposedly tamper-proof sample bottles each night. Rodchenkov would pass the samples through a small hole in the wall, quickly replacing them before testing the next morning. After the report was released, Russian officials forced Rodchenkov to resign as Laboratory Director, and he fled the country.

According to Rodchenkov, dozens of Russian athletes were doping at the 2014 Winter Olympics, including at least fifteen medal winners. On December 9, 2016, an independent report published by Canadian lawyer Richard McLaren confirmed Rodchenkov’s account. The report outlined the history of Russian doping at the 2012 Summer Olympics in London, the 2013 Moscow Track and Field World Championship, and the 2014 Winter Olympics. McLaren described the 2014 Winter Olympics as the “apex” of Russia’s cheating, because Russia hosted the event and could control drug testing.

The Charges Against Rodchenkov

The film depicts Rodchenkov as a whistleblower. Since its release, others have named him “Russia’s Edward Snowden.” The Russian sports ministry has continually denied any state-sponsored doping. Rodchenkov remains in witness protection in the United States, fearing that he might be killed because of his public statements incriminating the Russian government and Vladimir Putin. Rodchenkov’s concerns about his safety may not be misguided—two of his close colleagues and former anti-doping officials unexpectedly died in February 2016, soon after the WADA report was released.

Former Russian Sports Minister Vitaly Mutko, now Russia’s Deputy Prime Minister, called the allegations “a continuation of the information attack on Russian sport.” Instead of addressing the reporters directly, Mutko responded via conference with Russia’s state-run media outlet, “TASS.” According to Mutko, the claims are baseless, and were part of an attempt to discredit Russian sports ahead of the 2016 Summer Olympics in Rio de Janeiro.

Despite the evidence from McLaren’s report, which consisted of “1,166 pieces of proof, including emails, documents and scientific and forensic analysis of doping samples,” the International Olympic Committee (IOC) did not ban any Russian athletes from any competitions, instead allowing the individual federations to decide whether Russian athletes may compete. In total, about a quarter of Russia’s athletes were not permitted to compete in the 2016 Summer Olympics. Additionally, the International Paralympic Committee (“IPC”) banned the entire Russian Paralympic team from the 2016 Summer Paralympics.

As of September 2017, WADA has closed its investigation, having concluded that the McLaren report “simply may not be sufficient evidence required to sanction” the Russian athletes implicated. However, the United States and sixteen National Anti-Doping Organizations persist in demanding Russia’s ban from the 2018 Winter Olympics in PyeongChang, South Korea.

As for Rodchenkov’s legal situation, the recent issuance of an arrest warrant may indicate that Russia will soon demand his extradition. However, Russia does not have an extradition treaty with the United States, so that move is unlikely to have any real effect. More news about Rodchenkov will inevitably be released as his case proceeds, but until then, grab some popcorn, power up Netflix and sit back for Icarus’ two-hour shocking exposé.

Introducing the NULRO Blog

Written by ludist

Incoming NULR staff and editorial board members at orientation.

My name is Thomas Rousse, and I serve as the Vol. 112 Senior Online Editor at Northwestern University Law Review. It’s my pleasure to welcome you to our new blog. This year, we’re starting a new initiative to give our membership more opportunities to write for a public audience. Members of our staff will write about recent cases, legal issues in the news, and ongoing debates about theory and policy. Second-year law students will work closely with the Online editorial board to provide the same level of professionalism and accuracy as the rest of our publication.

We also accept submissions from outside authors. Please send me an email if you are interested in publishing pieces under 2,000 words, typically with a one- to two-week turnaround.