Bachelor in Paradise? The Harsh Reality of Reality Television Contracts

Written by Sami Fenton

© 2018 Disney | ABC Television Group. All rights reserved.

This blog post previews my Note topic, The Harsh Reality of Reality Television Contracts, which explores whether principles of contract law and labor law can provide protection to reality television participants when things go wrong.

On Sunday, June 4, 2017, the fourth season of Bachelor in Paradise began taping in Mexico. However, the reality was no paradise. News sources reported that a sexual encounter between a male and female contestant occurred while the cameras were rolling in which the female was too drunk to consent. Although production continued Monday, a producer filed a third-party complaint for sexual misconduct. On Tuesday, production stopped, the contestants were placed on lockdown, and an internal investigation began.

On Sunday, June 11, the contestants and crew were sent home and stories of the investigation and the production suspension broke. Amid the media frenzy, Warner Bros. released the following statement to the public:

“We have become aware of allegations of misconduct on the set of ‘Bachelor in Paradise’ in Mexico. We have suspended production and we are conducting a thorough investigation of these allegations. Once the investigation is complete, we will take appropriate responsive action.”

On Tuesday, June 20, Warner Bros. announced that its internal investigation was complete, the investigation concluded no misconduct had occurred, and production would resume. The studio also announced that the footage of the encounter would not appear on the show.

This scandal left many wondering what would have happened if the investigators determined that misconduct had occurred. Since reality television contracts typically include extensive liability waivers as well as nondisclosure agreements and arbitration agreements, the contracts are designed to protect production companies from liability. For instance, during the Bachelor in Paradise scandal, CNN obtained a copy of the contract contestants must sign before appearing on the show. According to one provision, contestants must agree that the producers are not liable for almost anything that happens to them during filming, including injuries, emotional trauma, contracting an STD, and being subjected to “unwelcome/unlawful contact or other interaction among participants.”

But should these provisions be enforced when illegal conduct occurs on set? To answer this question, my Note looks at the unique aspects of reality television programming, the labor status of reality television participants, and the contract formation process to determine whether a court would (and should) uphold these contracts as enforceable when contestants are harmed on set.

While audiences are drawn to the unique format of reality television, this format also provides distinct advantages to production companies. Following the Writers Guild of America strikes in 1988 and 2007–08, the unscripted nature of reality shows offered the television industry a way to avoid the consequences of strikes, because networks could hire non-professional talent at a fraction of the cost without being subject to the constraints of union protections. In addition, reality television allows networks and producers to save a significant amount of money on production costs by hiring unskilled and non-unionized labor as the “real” stars of their shows.

However, as reality television continues to stand at the center of the television industry, entertainment laws have not adapted to acknowledge the significance of the way it treats its participants from a legal standpoint. For instance, because reality television assumes that its participants are ordinary people rather than professional actors and performers, reality participants are not members of actors’ unions or guilds. In addition, since no federal or state legislation or jurisprudence clearly categorizes the nature of the work relationship between reality television contestants and their employers, there is no clear answer as to whether federal and state labor laws apply to this group of people. As a result, networks and producers can use this ambiguity to their advantage because they are able to hire cheap and expendable labor.

Furthermore, the contract negotiation process gives networks and producers inequitable bargaining power. The “ordinary” stars of reality television lack industry knowledge, and are often pressured into signing contracts that are exploitative and release producers from all liability. The scholars who have analyzed reality television contracts have questioned whether the doctrine of unconscionability can be used to find these contracts unenforceable. Such scholars have found that although these contracts seem unfair, they are not unconscionable and should be enforced.

As an alternative to the unconscionability doctrine, my Note turns to the public policy doctrine as a potential challenge to the enforceability of these extensive liability waivers. Under California Civil Code Section 1667, a contract is unlawful if it is contrary to public policy. One could argue that it is against public policy for production companies to waive liability when illegal conduct occurs on set, and the company was aware and did nothing to stop it. Moreover, claims for criminal misconduct or gross negligence cannot be released, no matter how broad the waiver language. “If the contract requires you to release any claims you have that you were sexually assaulted, which is a crime, then the contract may or may not be enforceable under the public policy of the state of California,” attorney Josh Schiller told CNN. “Law enforcement could get involved and bring charges . . . would we want to enforce a contract that no one would be liable if they were filmed being sexually assaulted? That would create a real problem.”

While it is unclear whether a court would uphold contracts that absolve production companies of liability when contestants are harmed, one thing is certain: reality television is far from paradise for its contestants.

The Seventh Circuit’s Admirable but Misguided Ruling on Transgender Discrimination

Written by Adam Alexander

The Seventh Circuit recently addressed discrimination issues involving a transgender student in a case of first impression, Whitaker v. Kenosha (2017), holding that a transgender student was protected by Title IX’s prohibition against sex-based discrimination. The court theorized that because transgender people do not conform to traditional stereotypes associated with their birth sex, transgender discrimination is nothing more than sex stereotyping, long prohibited by protections against sex discrimination. In essence, the court held that prohibiting a trans boy from using the boys’ restroom was sex stereotyping, because if he was born a boy, he would have been allowed to use the boy’s room. The decision is a victory for transgender rights advocates, but does not recognize gender identity as a protected class under the Equal Protection Clause.

The court could have instead found that gender identity, like sex, is a protected class deserving of heightened scrutiny. There is no evidence that the 1972 Congress intended to protect gender identity when it passed a prohibition against sex-based discrimination, and municipalities across the country have debated adding gender identity to their anti-discrimination policies. Few non-lawyers would say that transgender people have been protected by statute since 1972. To borrow reasoning from Judge Diane Sykes’s dissent in Hively v. Ivy Tech Community College of Indiana (7th Cir. 2017), the court could have found that a school that refuses to allow a transgender man from using the men’s room is not discriminating against him because of his birth sex, but because his gender identity does not match his birth sex. Thus, the argument continues, the discrimination is based on gender identity, and the discriminatory motivation is independent of and unrelated to the student’s sex.

“Legislating from the bench” to achieve a desired outcome is a controversial subject, and courts can avoid debates over it by achieving the same result in a more straightforward manner. In the Whitaker case, the court could have concluded that the Equal Protection Clause protects against discrimination based upon gender identity. In Windsor v. United States (2012), the Second Circuit succinctly laid out the Supreme Court’s test for quasi-suspect classes worthy of heightened scrutiny: to be classified as a quasi-suspect class, 1) the group must have suffered a history of persecution, 2) its defining trait has no relation to members’ ability to contribute to society, 3) it must be a discernible group with distinguishing characteristics, and 4) it must be politically weakened. Trans people have reported high rates of discrimination in education, employment, housing, and healthcare. There is no data showing transgender people are less productive than other members of society, by virtue of their transgender status. They are easily discernible based upon the mismatch between their birth sex and their gender identity. Finally, they lack the political strength to protect themselves, as evidenced by the recent military ban, as well as their complete lack of representation in Congress and the federal judiciary.

Before his retirement, Judge Richard Posner argued in his concurrence in Hively that the judiciary has a duty to “update” old laws and constitutional provisions so that they can reflect the needs of modern society. But the Whitaker court need not have entered such controversial territory to protect transgender rights, when it could have instead found that trans people have been historically denied equal protection of the laws.

Carpenter v. US: The Intersection of Law, Technology, and Privacy

Written by Emma Englund

Image by Japanexperterna. CC BY-SA License.

Since Steve Jobs unveiled the legendary iPhone in 2007, smartphones have fundamentally changed countless aspects of human interaction from how we navigate to how we communicate. Today, over three-quarters of adults in the United States own a smartphone, making it one of the fastest spreading technologies of all time. The emergence of smartphones has also changed the way federal and local law enforcement agencies conduct investigations using data-collecting techniques that some argue infringe on our right to privacy.

On November 29th, the Supreme Court heard oral arguments in a case which lies at the intersection of the ever-evolving capabilities of technology and the decades-old Fourth Amendment doctrine. The issue in Carpenter v. United States is whether police obtaining historical cell-site records that reveal time-stamped locations of a cell phone user without a warrant is permitted under the Fourth Amendment.

The case arose from the conviction of a man named Timothy Carpenter, who was involved in a series of armed robberies in which a group of men targeted cell phone stores in Michigan. Ironically, it was Carpenter’s own cell phone that ultimately led to his conviction and life sentence. Carpenter acted as the leader of the group, supplying the guns and signaling the start of each robbery. After a coconspirator confessed to the robberies and turned over Carpenter’s phone number, the government applied for historical cell-site records under the Stored Communications Act. Unlike the probable cause requirement for obtaining a warrant under the Fourth Amendment, the Stored Communications Act merely states that a court order may be issued if there are “reasonable grounds to believe” that the information sought is relevant and material to a criminal investigation. The court order was granted, and the government received four months of cell-site location data, which placed Carpenter near several of the robberies in question and ultimately contributed to his conviction.

On appeal, a divided three-judge panel on the Sixth Circuit affirmed Carpenter’s conviction and sentence, holding that the government collection of cell-site location data from cell service providers did not require a warrant, because it did not constitute a search under the Fourth Amendment. The test for a Fourth Amendment search comes from Justice Harlan’s concurring opinion in Katz v. United States (1967). Under the two-part Katz test, a search requires a warrant if the individual has a subjective expectation of privacy that “society is prepared to recognize as reasonable.” In the 1979 case Smith v. Maryland, the Supreme Court explored how this test applied in the context of phone records: the police had installed a pen register at a central telephone company office to record telephone numbers dialed from the suspect’s home phone. The Court stated that obtaining a record of phone numbers from a suspect is not a search under the Fourth Amendment, because an individual has “no legitimate expectation of privacy in information he voluntarily turns over to third parties.” The Sixth Circuit reasoned that under this third-party doctrine, Carpenter voluntarily carried and used his cell phone, and he therefore lacked a sufficient interest in the cell-site records created and maintained by his wireless carriers.

Carpenter v. United States illustrates the fundamental conflict between rapidly evolving technology and relatively static constitutional doctrine. The legitimate expectation of privacy standard articulated in Smith is incompatible with how technology, particularly the smartphone, is used in everyday life. As Justice Sotomayor pointed out in her concurrence in the 2012 case United States v. Jones, “[t]his approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Hopefully, the Supreme Court will use Carpenter v. United States to readdress the third-party doctrine and articulate a Fourth Amendment standard that is more closely aligned with our privacy expectations today.

New ABA Requirements Bring Changes to Law School Classrooms, Creating Opportunity, and Chaos

Written by Jacob Wentzel

Photo by Woody Hibbard. CC-BY 2.0 License.

Unbeknownst to many students J.D. and L.L.M. students, our classroom experiences are embarking upon a long-term path toward what could be significant changes as a trio of ABA requirements for law schools nationwide begin to take effect.

The requirements are Standards 302, 314, and 315 , each of which defines a new type of requirement: learning outcomes (302), assessments (314), and global evaluations of these (315). According to Christopher M. Martin, Assistant Dean and Clinical Assistant Professor at Northwestern Pritzker School of Law, these standards take after similar ones that the Department of Education rolled out for undergraduate universities years ago. In theory, they seek to help law schools improve their effectiveness by, among other things, telling students what they should be learning and tracking students’ progress throughout the semester. Indeed, as a law student, it often feels like you lose the forest for the trees, imbibing immense quantities of information without grasping the bigger picture, let alone the skills the legal profession demands.

So, do these new rules promise modernization of law school curricula and improvement in student performance? Not necessarily. From the perspective of some professors, the new requirements may feel like an intrusive and unhelpful burden on their ability teach effectively.

Although the new standards were issued a few years ago, law schools have been taking time to prepare. Implementation, which takes place in two phases, began for all practical purposes just this semester. In phase one, the Northwestern Law is well on its way toward implementing Standard 302, which divides into two categories of learning objectives: institutional and course-specific. Northwestern Law recently published the final version of its six “Institutional Learning Objectives.” According to Dean Martin, Northwestern Law had excellent participation from faculty when it came to designating course-specific learning objectives on course syllabi. The next step is even better participation in the spring. After Learning Objectives have taken off, the plan for the future is to keep evaluating, correcting, re-evaluating, and refining objectives, especially on the course-specific level, perhaps on a yearly basis.

Northwestern Law students may have seen such learning objectives on many of their syllabi this semester; a quick scan of my own shows four out of five that complied. Few professors designated such outcomes before this semester. And yet, according to Dean Martin, many professors have been grateful for the new obligation because the process of defining learning objectives puts them, perhaps for the first time in a while, back in their students’ shoes, where they can think from a fresh perspective about what students should learn, besides just the daily material.

The real changes come next, when Standards 314 and 315 are implemented. These standards aim to have law schools measure progress toward learning objectives and maintain such data in order to facilitate improvement over the years. Despite these lofty goals, however, given such pressure to collect data,  the standards might also wreak havoc in their implementation, at least until substantial wrinkles are ironed out.

Standard 314 in particular is short but packed with consequences for the conventional  law school approach to assessment and feedback: “A law school shall utilize both summative and formative assessment methods in its curriculum to measure and improve student learning and provide meaningful feedback for students.”  “Summative” assessment methods mean big-picture, and they’re familiar to law schools: bar passage rates, employment statistics, etc. The standard does not require the data to be published, just maintained and reported to the ABA. End-of-course assessment is also “summative,” including final exams, papers, and even course evaluations. One new summative method the Law School is considering is to integrate a self-evaluation of progress toward learning objectives into the course evaluation process.

By contrast, formative assessment is about assessing students “at different points during a particular course,” precisely when many courses typically do not. Formative assessments are also about generating information and ideas about what professors do in the classroom. Such assessment methods include quizzes, midterms, drafts, rubrics, and more. Again, professors are not required to show students the results of such assessments, but must maintain and collect the data for institutional purposes—to help law schools track how students are learning material during the semester and to make long-term improvements.

Not all professors will comply with the new requirements; according to Dean Martin, it’s not clear that all must. But many professors will, especially those who will be around for a while. Over time, mid-semester assessments of all shapes and size may well become the norm in law school curricula. Yet even professors who are already used to giving students such assessments may not adapt easily to the new requirements. The issue now is data: it would perhaps no longer suffice, for example, to issue practice questions and give written feedback on student answers. Professors would now have to gather behind-the-scenes data on the assessments: how many students completed them, how did they measure up against the learning objectives and performance criteria, etc. The result may demand myriad complex charts just to keep track of the framework for all the assessment data to be gathered, such as these from Villanova School of Law. In other words, underneath the opportunity for improvement and refinement that such assessment standards bring lurks their potentially chaotic implementation.

Standard 315 gives teeth to this regime of new standards by compelling deans and faculty to “conduct ongoing evaluation of the law school’s program of legal education, learning objectives, and assessment methods” in order “to make appropriate changes to improve the curriculum.” Much like Standard 314, the complex data gathering and analysis of this requirement offers both the opportunity for improvement yet the risk of chaos.

According to Dean Martin, implementation of Standards 314 and 315 is expected to be very gradual given their complexity and novelty. The next deadline is for schools to have assessment plans by spring 2019, though Northwestern Law may be ready to make significant progress in advance of that date. From there, one thing is for sure: the next three to five years of implementing these standards will be interesting to observe.

Notre Dame’s Contraceptive Coverage and the Need for Notice and Comment

Written by Kendra Doty

A copper IUD, a form of long-term birth control. Photo by Ceridwen, CC BY-SA 2.0 FR License.

On October 31, 2017, the University of Notre Dame terminated contraceptive coverage for employees and graduate students. The school’s announcement was immediately criticized, and a week later, the school reversed its decision. To understand Notre Dame’s flip-flop, it is important to interrogate the underlying rationale for the school’s decision to terminate coverage in the first place: the Trump Administration’s recent rollback of the Affordable Care Act’s (ACA) mandate that employers provide contraceptive coverage as part of its health insurance policy.

In early October, the Internal Revenue Service, the Employee Benefits Security Administration, and the Centers for Medicare & Medicaid Services issued interim rules expanding the religious and moral exemptions to the ACA’s contraceptive coverage mandate.

In response to the new rules, the American Civil Liberties Union (ACLU) filed suit in the Northern District of California, and the National Women’s Law Center and Americans United for Separation of Church and State filed suit in the Northern District of Indiana. Among other arguments, both complaints allege that the procedures used to implement the interim rules violated the Administrative Procedure Act (APA) in that the rules were promulgated without first providing an opportunity for notice and comment.

The APA requires an agency to provide a notice of proposed rulemaking and an opportunity for interested parties to file comments before promulgating a substantive rule, or a rule that has the force and effect of law. In General Electric Co. v. EPA (2002), the D.C. Circuit held that an agency must comply with notice and comment procedures when the agency pronouncement appears on its face to have a binding effect on regulated parties. Similarly, in evaluating the procedures used by the Obama Administration in implementing Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), the Fifth Circuit held in Texas v. United States (2015) that when a legislative rule “modifies substantive rights and interests,” it must be preceded by a notice and comment period.

The complaints filed by the ACLU, the National Women’s Law Center, and Americans United for Separation of Church and State operate against the backdrop of the Supreme Court’s statement in Zubik v. Burwell (2016), urging the parties to strive to find “an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” By refusing to follow the notice and comment procedures required by the APA when issuing the interim rules expanding the religious and moral exemptions to contraceptive coverage, it appears that the agencies did not follow the Court’s recommendation. Providing a notice and comment period before promulgating a revision or interim rule “allows an agency to determine whether the initial rule was in fact invalid—and if so, what to do about it.” This communicative process likely would have been fruitful in this case considering the immediate effect of the interim rules and the six-year brainstorm that culminated in the mandate in the first place. There will likely be questions about the parties’ standing and ability to seek judicial review of the agencies’ decisions. It would be unsurprising, however, given recent precedent and the apparent benefit a comment period would have before the interim rules took effect, for the courts to tell the agencies to try again.

While Notre Dame’s fluctuating policy choices appear confusing at first, the circumstances underlying the school’s decision are not entirely stable. The rules on which the school based its decision are in flux and are currently being challenged. While the courts consider these cases in California and Indiana, one should keep a watchful eye on recent legislative reactions to the agencies’ interim rules. Bills have been introduced in the House and the Senate proposing nullification of the agencies’ decision, and some states have responded to this unpredictable climate by initiating legislative efforts to require contraceptive coverage independent of the ACA’s mandate. Parties interested in submitting comments to the agencies concerning the interim rules expanding the religious and moral exemptions to contraceptive coverage may do so until January 8, 2018.

What Will Anthony Kennedy Think of Partisan Gerrymandering This Time?

Written by Jonathan Byron

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

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

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

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

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

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

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

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

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

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

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

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

Written by Eva Derzic

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

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

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

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

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

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

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

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

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

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

Written by Joshua Cowin

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

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

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

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

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

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

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

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

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

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

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

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

Leveraging Social Science Evidence in the Courts Today

Written by Meredith McBride

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

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

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

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

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

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

An Analysis of Catalonia’s Independence Movement

Written by Peter Candel

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

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

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

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

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

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

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

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

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