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McAdams v. Marquette University: Expanding Academic Freedom

Introduction:

Academic freedom encapsulates the protection of the free exchange of ideas among students and faculty of academic institutions. Although the Constitution does not explicitly include the right to academic freedom,  the Supreme Court has repeatedly upheld it, citing the First and Fourteenth Amendments. In essence, academic freedom is necessary to allow institutions of higher education, their students, and their faculty members to function effectively without unreasonable governmental interference or institutional regulation, thereby advancing American society through the acquisition of knowledge. 

In the United States, the creation of the American Association of University Professors (AAUP) in 1915 formally introduced the notion of academic freedom. In 1940, this organization published its “Statement of Principles on Academic Freedom and Tenure” which outlined the primary goals of academic freedom at the time.It highlighted the importance of enforcing freedom in pursuing and publishing research, freedom of instructors to teach their discipline, and freedom “to speak or write as citizens” without disciplinary consequences. In the 1950s and 1960s, the application of academic freedom focused on safeguarding higher education institutions and faculty from external political repression. For example,in Sweezy v. New Hampshire, the Supreme Court ruled to overturn professor Paul Sweezy’s contempt citation for refusing to testify about the controversial content of one of his lectures. Chief Justice Earl Warren cited academic freedom and political expression in the majority opinion. In the decades that followed, academic freedom cases took on an internal focus, with many conflicts occurring between institutions and their faculty. As a result, court rulings in these cases helped define the limits of institutional academic freedom relative to faculty academic freedom, opening new lines of legal inquiry that persist in contemporary cases.

Facts of the Case:

McAdams v. Marquette University falls into the latter class of academic freedom cases. In 2014, tenured professor Dr. John McAdams posted a personal blog criticizing graduate student and philosophy instructor Cheryl Abbate for ending a class debate regarding LGBTQ+ rights, claiming that “everybody agrees on this”. The post gained national attention, resulting in many threats directed towards Ms. Abbate, whom McAdams referenced by name in the post. Consequently, on Dec. 16, 2014, Marquette suspended McAdams without pay and barred him from its campus. In January 2015, Marquette sent a formal notice to inform McAdams that it was initiating a Faculty Hearing Committee hearing to determine if it would revoke his tenure and terminate him. Ultimately, the committee concluded that Marquette could suspend McAdams without pay for a maximum of two semesters. His reinstatement was conditional upon a written statement of regret about his post’s implications for McAdams. 

McAdams did not comply with these terms, and sued Marquette, claiming a breach of contract and violation of his academic freedom as a professor. Marquette argued that the courts must defer to its disciplinary proceedings because “it did not abuse its discretion, infringe on constitutional rights, act in bad faith, or engage in fraud.” Marquette motioned for summary judgement, and the court ruled in the university’s favor. In its decision, the Circuit Court for Milwaukee County asserted that Marquette did not violate its contract with Dr. McAdams because he “expressly agreed as a condition of his employment to abide by the disciplinary procedure set forth in the Faculty Statutes.” In reference to academic freedom, the court claimed that McAdams’s blog post was not protected because it “infringe[d] on the rights of others,” namely Ms. Abbate. 

Dr. McAdams appealed this decision and the Wisconsin Supreme Court  agreed to hear the case in January 2018, bypassing the Court of Appeals. The court began by asserting that it would not defer to Marquette’s disciplinary process because doing so would infringe upon Dr. McAdams’s right to sue in court. In assessing the case, the court also accounted for information presented in an amicus curiae by the AAUP on Dr. McAdams’s behalf. In this amicus brief, the AAUP argued that academic freedom protects “extramural speech” of professors, and that academic institutions cannot dismiss faculty on this basis unless a full review of their record indicates that they are not fit to teach. 

In addition to accounting for this amicus brief, the court also tailored their analysis to the definition of academic freedom outlined in Marquette’s Faculty Handbook, which was adapted from the AAUP’s Statement of Principles on Academic Freedom and Tenure. The court then established a two-part framework to assess whether Dr. McAdams’s post was protected under academic freedom: first assessing whether the blog post sufficiently demonstrated his unfitness to serve as a professor before examining the post in relation to his career and competing university values. Through this analysis, the court found that McAdams’s actions did not prove unfitness, thus meeting the standard for protection under academic freedom as extramural expression. As such, the court found that Marquette violated the terms of Dr. McAdams’s contract, which includes the right to academic freedom. 

Implications:

The Wisconsin Supreme Court’s verdict in McAdams v. Marquette University has several implications for the legal parameters of academic freedom at colleges and universities across the United States. By reversing and remanding the circuit court’s decision on all accounts, the court placed priority on faculty’s academic freedom over the competing protection of institutional independence under the doctrine of academic freedom. In doing so, it made the case for further integrating AAUP standards into the legal community’s understanding of academic freedom. This shift would yield two major consequences for higher education institutions across the country. 

First, the court’s ruling explicitly stated that an internal hearing by the university does not limit faculty members from pursuing litigation, thereby checking institutions’ autonomy to situationally define academic freedom. Furthermore, by utilizing the narrow two-part analysis outlined in AAUP literature, the court established a legally sound model for universities to adopt for their internal proceedings. As a result, colleges and universities will likely need to review their faculty contracts and methodologies for addressing faculty disputes to ensure their compliance with the legal understanding of academic freedom. Amidst an increasingly divisive political environment, this decision will likely continue to gain increasing significance, making a case for embracing controversy and debate in academic issues. 

Emma Coleman is a sophomore from Doylestown, PA studying Economics and Psychology.

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Rucho v. Common Cause—The Future of Partisan Gerrymandering

Introduction

On June 27, 2019, the Supreme Court jointly decided Rucho v. Common Cause and Lamone v. Benisektwo pivotal cases that defined the role of the federal courts in cases of extreme partisan gerrymandering. Gerrymandering is a political technique that has been utilized for centuries by both major political parties in order to stack elections in their favor by drawing legislative boundary maps in such a way that advantage one party. This is often done by packing one party’s supporters into as few districts as possible and/or splitting up that party’s supporters into various districts so they cannot gain a majority. The Supreme Court has heard cases of gerrymandering in the past; however, those issues were tied to racial gerrymandering. These two cases were the first to explicitly question the legality of gerrymandering purely on a partisan basis.

Facts of the Case

On Jan. 9, 2018, a federal court struck down North Carolina’s 2016 congressional map, declaring it unconstitutional due to the way it had been drawn to give North Carolina Republicans a clear political advantage. Judge James A. Wynn Jr., who made the ruling, stated that the map violated the Equal Protection Clause of the 14th Amendment, as the map sought to divide North Carolina into 13 congressional districts, ten of which were predominantly Republican. This ruling was particularly contentious due to North Carolina’s historical status as a “purple” state. In 2008, North Carolina’s electoral votes went to President Barack Obama, yet in 2016, the state voted for President Donald Trump.

North Carolina Republicans, led by former state senator and head of the redistricting committee Robert Rucho, appealed this decision to the Supreme Court in October 2018. The Supreme Court, in a 5-4 decision along partisan lines, decided that the federal court’s ruling was “nonjusticiable,” because gerrymandering, partisan or otherwise, was an issue of a legislative nature, and therefore outside the reach of the federal judicial system. In the majority opinion, Chief Justice John Roberts wrote that, while excessive partisan gerrymandering does create results that “reasonably seem unjust,” it is not the job of the courts to decide questions of a political nature. Roberts further wrote that “federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution,” going on to state that the Framers of the Constitution entrusted this duty of determining redistricting to state governments, not to the federal courts.

In a dissent filed by Justice Elena Kagan, in which she was joined by Justices Ginsburg, Breyer, and Sotomayor, Kagan wrote, “Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.”

Implications

The Supreme Court’s decision to take a step back from the growing issue of partisan gerrymandering has broad implications for the 2020 national election. Currently, most “rigged” maps are tilted in favor of the Republican party. States are redistricted every ten years after the United States Census, which most recently occurred in 2010. Republicans did very well politically in 2010, gaining control of numerous state legislatures that allowed them to control maps. Depending on how the 2020 election goes, whichever party ends up in greater control of critical “swing” states could set the tone of another decade of national policy. 

In states such as North Carolina, Republicans were well poised to retain control over the state legislature in the upcoming election. Due to gerrymandering, 10 out of the 13 congressional seats in North Carolina are currently held by Republicans, even though only about 50 percent of voters in the state voted Republican in the last few election cycles. With this decision, the Supreme Court essentially allocated the onus of changing partisan gerrymandering to a gerrymandered government. 

However, since the decision, there have been further developmentsstate courts have been weighing in on issues of partisan redistricting. On Sept. 3, 2019, a North Carolina court in Wake County, exercising their right as outlined for them in Roberts’ opinion, declared that the state’s congressional maps violated the state constitution, as they “deprive[d] North Carolina citizens of the right to vote for General Assembly members in elections that are conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.” The court wrote that representatives were being chosen not by voters but by “map drawers,” and gave state officials two weeks to redraw maps in a nonpartisan way. This decision might mark a new era of state courts taking initiatives to resolve partisan battles within their districts, now that the federal courts have decided not to interfere. 

Other states have been working on implementing other measures to ensure that gerrymandering becomes a fairer process. In Ohio, Michigan, Missouri, Colorado and Utah, recent ballot initiatives have been attempting to overhaul the redistricting process by taking it away from state politicians and entrusting it to independent committees. These changes were happening even before Rucho v. Common Cause made it to the Supreme Court, indicating that the country may not need the highest court in the land to involve themselves in order to create a better, more just, voting process. However, the Supreme Court’s laissez-faire approach will mean that state courts and legislatures will have to put in a lot more work before excessive partisan gerrymandering is no longer an issue. Without a uniting federal decision, there remains a large question around the fine line between constitutional and unconstitutional district manipulation. 

Annika Agrawal is a first-year from Chicagoland, IL studying Neuroscience and Policy Journalism and Media Studies.

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Department of Commerce v. New York: The Question of Citizenship

Introduction

The United States Census has been taken every ten years since 1790. The census aims to gather information about the population, which is then utilized to calculate the number of seats each state will have in the United States House of Representatives. The census has never directly asked if the respondent is a citizen of the United States. However, under President Donald Trump’s administration, the United States Census Bureau planned to include the question, “Is this person a citizen of the United States,” on the 2020 census form that will be sent to all households in the country. 

On June 27, 2019, the United States Supreme Court blocked the plan to include the citizenship question on the census because the government gave a “contrived” reason for requesting the information. However, the court didn’t rule out the possibility of any future citizenship questions. 

Why inquiring about citizenship is controversial

On the surface, it may seem appropriate for a national government to ask its inhabitants about citizenship. After all, accurate citizenship information could help the United States enforce laws against discrimination and fund educational programs for foreign-born students. Even so, the census is the wrong place for the government to ask every household in the United States for the number of citizens residing there. The primary goal of the census is to count every person in the nation, but by inquiring about information that may put non-citizens at risk, the response rate to the census will be much lower than necessary.

According to New York Attorney General Letitia James, an untested citizenship question “could have caused a substantial undercount, particularly of noncitizens and Latinos.” Therefore, states, counties, and cities that are home to large groups of immigrants or Hispanics would likely be most affected by an inaccurate population count. For example, immigrants and Hispanics generally vote for the Democratic Party in elections. However, congressional districts may be redrawn according to the census data, and if the population of an area is undercounted, that area may be combined with another congressional district. Consequently, the state would lose seats in the House of Representatives that may have usually gone to Democratic politicians. 

The United States Supreme Court’s decision

The proposal to add an untested citizenship question to the 2020 census arrived to the United States Supreme Court after multiple defeats in lower courts. Commerce Secretary Wilbur Ross reported that the primary reason the United States government wanted to include a citizenship question on the census was to better uphold the federal Voting Rights Act of 1965. Lower courts accused the Commerce Department of committing “a veritable smorgasbord”  of infractions under the Administrative Procedure Act. These purported misbehaviors include lying about the true reason for wanting to include a citizenship question on the census, neglecting to account for the evidence that clearly states asking a citizenship question will result in an undercount of the population, and defying clear sections of the Census Act. 

In a 5-to-4 split decision, the United States Supreme Court ruled that the Trump administration could not add the citizenship question to the 2020 census for now. The Court blocked the citizenship question solely because the Department of Commerce’s reasoning for including the question was pretextual. It is illegal for an agency to make a decision without disclosing the true reasons for their actions. In this case, the Supreme Court believed that “accepting” the Department of Justice’s “contrived reasons” for the implementation of a citizenship question on the census “would defeat the purpose of the enterprise.” Chief Justice John Roberts wrote the majority opinion, stating that “the explanation provided here was more of a distraction.” Roberts included information about how Ross was “determined to reinstate a citizenship question from the time he entered office” and “instructed his staff to make it happen.” However, the Supreme Court overturned the other violations that lower courts accused the Department of Commerce of committing. 

Implications

The Supreme Court’s decision in Department of Commerce v. New York has far-reaching implications for both the Trump administration and the United States Census in general. The Supreme Court did not completely overturn the Department of Commerce’s plan to include a citizenship question on the census; the ruling only blocked the inclusion of the citizenship question because of “the evidence [telling] a story that does not match the Secretary’s explanation for his decision.” The court technically approved the legality of the government directly asking about citizenship in a large-scale census. The opinion written by Chief Justice Roberts reads that Secretary Ross has the right to inquire about citizenship because Congress’s authority over the census “has been open, widespread, and unchallenged since the early days of the Republic.” 

It is too late for the Trump administration to alter their explanation regarding the inclusion of a citizenship question on the 2020 census because the questionnaire began printing at the end of July. Still, the Supreme Court’s ruling creates the potential for a future presidential administration to present a sincere reason for asking about citizenship on the census. According to the results of Department of Commerce v. New York, a citizenship question would be allowed on the United States Census under the aforementioned circumstances. While the 2020 census will be free of questions regarding citizenship, the future of the United States Census remains murky.

Caroline Kincaid is a sophomore from Venice, Florida. She is pursuing a double major in history and public policy.
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Cameron et al v. Apple Inc: Defining an Illegal Monopoly in the Technology Sector

Introduction

Big technology companies have seen an unprecedented increase in success within the past decade, but some would argue that their achievements have been at the cost of smaller companies. Tech giants such as Google, Apple, and Facebook challenge longstanding antitrust laws — regulations that prevent monopolies from crushing competition — with the emergence of new software and data. One example is Apple’s $250 billion in cash on hand that is often used to acquire small startups which sell similar products to them. App developers are also pursuing these claims.

 In recent years, the App Store has become increasingly popular among developers and consumers. The store features more than 2 million apps that are used by hundreds of millions of people worldwide. However, despite the abundance of apps, Apple’s competitors claim that Apple uses the App Store to promote their own services in favor of rivals. Spotify, Netflix, Amazon, and others have seen their apps fall in rankings to Apple products with suspicious consistency and timing. While larger companies like Spotify and Netflix can attempt to direct customers towards their apps, smaller developers struggle to be noticed as it is alleged that Apple moves its own apps to the top of the rankings. In addition, app makers assert that Apple’s pricing policies are restrictive and unfair for competition. With the App Store being the most popular market for apps, many developers are filing claims against the tech giant to challenge what they see as a monopoly.

 

Facts of the Case

App developer Donald R. Cameron and Illinois-based company Pure Sweat Basketball are suing Apple for practices involving the Apple Store. The claims made by Cameron are similar to those in an substantial antitrust class action suit against Apple brought on May 13, 2019. Both plaintiffs allege that Apple has engaged in anti- competitive conduct by barring consumers from downloading iPhone apps not offered in the official App Store. In addition, Apple requires developers to price their apps in tiers ending in 99 cents and takes up to a 30 percent commission from developer sales. Cameron described Apple’s practices as “analogous to a monopolist retailer paying artificially low wholesale prices to its suppliers,” meaning that Apple does not compensate developers fairly for the apps that they sell on the App Store.

 Apple argues that it has enforced the App Store rules equally, regardless of whether an app competes with Apple’s own products. The company cites that many of their competitors, including Microsoft, have thrived on the Apple Store. Apple also emphasized that free apps on the App Store are distributed at no cost, besides the initial $99 fee, and that 84 percent of apps on the App Store are free.

 In a recent post, Apple defended its App Store practices by stating that the App Store had generated over $120 billion in payouts for developers. “We believe competition makes everything better and results in the best apps for our customers,” Apple said in the post.

 

Implications

The plaintiffs are seeking a larger class-action suit with other app developers. Not only is Apple facing multiple antitrust claims in this lawsuit and others, but there are also reports that President Donald Trump’s administration is preparing antitrust investigations into big tech. The U.S. Justice Department has disclosed plans to scrutinize tech platforms like Google, Apple, Facebook, and Amazon. President Trump has repeatedly accused these companies of bias against conservative views, and directly threatened Amazon with antitrust enforcement and higher shipping fees. Meanwhile, on the other side of the political spectrum, U.S. senator and presidential candidate Elizabeth Warren has published a 1,700-word blog post titled “Here’s How We Can Break Up Big Tech.” The article advocated for splitting up companies like Apple, Amazon, and Google and called for antitrust enforcement. Warren’s policies would restrict Apple from offering apps that compete with similar services available through its App Store.

The legal interpretation of antitrust laws since the 1970’s has been that these rules can only be applied in cases where consumers are harmed, usually through rising prices. However, when applying these regulations to tech giants like Amazon and Apple, the evidence shows that prices are actually decreasing. In Amazon’s case, there is no question that the tech giant is taking a large market share of online retail. However, consumers have decided to purchase products from Amazon due to their low fees and not because they have been forced to purchase products for high prices, as is the case in antitrust. This dilemma is investigated in a paper titled “Amazon’s Antitrust Paradox.”

 These cases all contribute to important questions about antitrust laws and how they can be applied to today’s companies. Established monopoly regulations were created to restrict Rockefeller’s Standard Oil Company and Carnegie’s Steel Company among others. If policymakers do not recognize that online retail and app markets are distinctly different from these companies of the past, then questions about antitrust standards will remain unanswered.

 While it is doubtful that tech giants will be successfully “busted” in the next few years, these allegations will likely gain more support and multiply in the next decade. Furthermore, antitrust in the tech industry has gained support from both conservatives and liberals, making it more likely to be enforced. The claims named by Cameron and others do not include additional suits involving infringement of data privacy rights by tech giants. With the rise of technology and data, it is necessary to adapt antiquated antitrust and monopoly policies to the modern era.

 

Arjun Rao is a sophomore from Seattle, WA studying Computer Science and Psychology.

 

June Medical Services v. Gee: What to Know About the Abortion Suit Before SCOTUS Hears it

Introduction

On October 4th, 2019, the Supreme Court of the United States agreed to hear the pivotal civil cases June Medical Services v. Gee and its accompanying Gee v. June Medical Services within the next few months. Over 45 years after abortion was legalized, this civil rights issue could be revisited as the upcoming litigation battle and subsequent decision will determine the accessibility and legality of abortions for years to come. The main point of contention in this upcoming landmark case is the Louisiana Unsafe Abortion Protection Act (La. HB 388), which is a law that aims to “provide for the requirements of physicians who perform abortions.”

 

Background of Louisiana Unsafe Abortion Protection Act

This Louisiana law, which is at the heart of this case, has a complicated history. Originally passed in 2014, the law essentially states that abortion providers must have the ability to admit patients at hospitals that are within a 30-mile distance from where the abortion occurs. Even though the US Court of Appeals for the conservative Fifth Circuit upheld this law in February, the Supreme Court granted a temporary stay. This means that the statue will not go into effect as the justices consider June Medical Services v. Gee. The restrictive nature of this law is evident in the fact that since this law’s passing, only two doctors have been able to get the special designation.

  One thing to note about this law is that it is identical to another anti-abortion Texas law passed in 2013 and subsequently invalidated in 2016. For reference, Texas HB 2 also had a proximity provision of 30 miles for admitting privileges. Likewise, there was also a Supreme Court case, Whole Woman’s Health v. Hellerstedt, in order to decide the case. The main point of contention was whether or not this bill posed a substantial burden for women seeking abortions and what exactly the scope of substantial burden was. By a decision of five to three, the court ruled that the main elements of HB 2 do not confer medical benefits that are sufficient to justify the burdens they impose on women seeking to exercise their constitutional right to an abortion.” This means that the abortion restriction did not actually advance its stated purpose of promoting women’s health and safety. As a result, the ruling was overturned and this law was deemed unconstitutional.

 

Summary of June Medical Services v. Gee until now

Even though Whole Woman’s Health v. Hellerstedt resulted in a pro-abortion ruling for a nearly identical law to La. HB 388, the state of Louisiana is now requesting that the Supreme Court decrease the scope of the 2016 decision. In other words, Louisiana is now asking the Court to limit its previously expressed ideals that a law of this nature should actually serve a health benefit and not burden a woman’s ability to get an abortion. Instead, Louisiana wants the Court to agree that the regulations are legitimate so long as the legislators just think that it serves a valid purpose.

On the other hand, the plaintiffs want the court to echo its 2016 decision. They plan to argue that this law does in fact impose an undue burden on women seeking an abortion. Additionally, they plan to challenge another Louisiana petition to the Court seeking to prohibit doctors and clinics from battling abortion restrictions. Overall, the plaintiffs are aiming to protect themselves from further disenfranchising thousands, if not millions, of women.

On October 18th, the US Court of Appeals for the Fifth Circuit rejected the state of Louisiana’s writ of mandamus, which was essentially a last-ditch attempt to delay the litigation process. Now, this case will be on the Supreme Court’s plate early next year.

 

Implications

Although this case may not necessarily overturn the monumental Roe v. Wade, it will likely set a precedent for the future of abortion rights and let the American public know what our acclaimed justices think of women’s rights. On that note, this decision will also test the views on abortion of two recently appointed justices: Neil Gorsuch and Brett Kavanaugh. The restrictive nature of La. HB 388 is evident since only two doctors have been able to receive the designation to perform abortions in Louisiana thus far. One doctor even said that if this bill was upheld, he would retire. Therefore, if the Supreme Court confirms the decision, there would likely be only one doctor and one clinic to perform all of the abortions within the state of Louisiana. As a result, with this decision, abortion could be regulated out of existence.” This contentious debate will also let us know how our justices prioritize political polarization pressure over clear legal justifications.

 

Ganesh Pentapalli is a Sophomore from Moorestown, NJ studying Mathematics and Literature.

 

Copyright Cleveland Clinic.

United States v. Walker: Using the Criminal Justice System to End the Opioid Crisis

The status quo of using plea deals to evade trials in the criminal justice system may be on the path to reform due to one Judge’s decision to deny a plea deal. District Judge Joseph Goodwin, in the southern district of West Virginia decided that the criminal justice system should be used as a platform for the public to learn about the opioid crisis. In United States v. Walker (2017), Charles York Walker was asking for a plea deal after being indicted on heroin distribution and a firearm violation. The prosecutor and Walker entered into a plea agreement, and the defendant was officially charged with a single count of possession of heroin in January 2017. The defendant had pleaded guilty, and while Judge Goodwin accepted this plea, he wanted to investigate further before accepting the proposed plea agreement. Goodwin asserted that the United States is a “participatory democracy”, and that accepting this plea deal and not bringing this case to trial would “[deny the people the right] to participate in the administration of the criminal justice system.

The decision to deny Walker’s plea was with the intent to utilize this case as an opportunity to engage the public with the opioid epidemic. Goodwin inferred that rejecting this plea deal would be in the best interest for the public, since it would give them a chance to become educated on the opioid crisis and participate in the criminal justice system. Goodwin additionally proposed a four-step initiative gauge public interest with this case.

The first part of his four-step initiative was that the criminal behavior displayed in this case must be considered with the “cultural context.” The cultural context is that the opioid crisis was an immense problem nationally, as heroin overdoses have tripled between 2010 and 2014. This particular case was held in West Virginia, where the opioid crisis is especially prevalent. In 2016, West Virginia had the highest number of deaths from heroin overdose. While the national average tripled between 2010 and 2014, in West Virginia the numbers quadrupled. It is essential to note, not all criminal distributions of heroin result in these increasing statistics for opioid-related deaths. In West Virginia, the average number of prescriptions for opioids per 100 persons was 110, while nationally it was 70.

Goodwin suggested that the national opioid crisis should increase the public’s interest and desire to get involved with the criminal proceedings in this case as part of the jury. He also believes that this experience could enable participants to become informed about the opioid crisis in general. By preventing a public trial and accepting the plea deal, there would prevent a “community catharsis.” Goodwin is a supporter of the public receiving a form of justice from the effects of the opioid crisis, and by beginning a start to denying plea deals to cases such as Walker’s, it will enlighten other judges to follow the same path and push for repercussions rather than leniency with opioids.

Goodwin went on further to discuss his personal distaste for the current acceptance of plea deals across criminal cases nationally. Historically, plea deals rose in the 19th and 20th century when the crime rates were rising faster than they were able to accommodate trials, thus making plea deals more appealing to judges. He also looked into Walker’s past, and used it as justification for denying the plea. In the copy of Walker’s plea rejection it states “a number of troubling facts regarding Mr. Walker’s criminal history and the criminal conduct at issue emerged” and that “Mr. Walker is intimately familiar with the criminal justice system.” These statements insinuate that Walker was prepared for a plea deal, because his past encounters with judges have granted him leniency. Walker was charged with burglary and theft at the age of 13 and convicted six more times for theft-related crimes before the age of 17. As an adult, Walker was convicted 18 times for: possession of crack cocaine and intent to distribute, firearm violations, reckless driving, driving under the influence and disorderly conduct. However, there are an additional 8 pending charges and 47 charges that were dropped or dismissed. Goodwin decided that Walker had consistently avoided any tangible repercussions in the legal system. His decision to deny the plea deal was with the intent to ensure that Walker would face consequences for his actions.

While Goodwin has good intentions to inform the public about the opioid crisis and allow them a chance to participate in democracy through the criminal justice system, it is questionable whether or not his decision will truly have the intended effects. By denying one plea deal, the opioid crisis is unlikely to end, the public would not all suddenly mobilize to fight the crisis and the criminal justice system would not be completely reformed.  Instead, an alternative would be to institute educational initiatives regarding the opioid crisis and discussing policy issues that contribute to this type of substance abuse.

Eight months after Goodwin’s decision to deny Walker’s plea deal, Walker was sentenced to ten years in federal prison. In this trial, U.S. Attorney Mike Stuart stated that “If you sell illegal drugs or if you violate gun laws, I will do all I can to send you to prison for as long as we possibly can.” This prosecution was additionally supported by Project Safe Neighborhood, a nationwide initiative that aims to lower rates of gun crimes. The  United States Attorney’s Office for the Southern District of West Virginia is additionally taking increased measures to control the opioid crisis in this region.  Despite these outcomes from Walker’s case, it is unknown whether there is any increase of the public’s knowledge and will to combat the opioid crisis as a result of Goodwin’s decision to deny the plea bargain.

Samia Noor is a sophomore majoring in public policy. She is from Los Angeles, California.

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State v. Downey: Reflective Of Lingering Price Gouging Dissatisfaction After Florence And Michael Subside

Summary: In the wake of hurricanes Florence and Michael, hundreds of price gouging complaints have been filed in the state of North Carolina, drawing attention to North Carolina’s price gouging laws in a state of emergency.

In the threat of Hurricane Florence, North Carolina governor Roy Cooper declared a state of emergency. The state’s price gouging law immediately went into effect, which defines gouging as charging “unreasonably excessive” prices for goods needed in an emergency. Even with this law banning the practice, the wake of Florence has left the North Carolina Attorney General’s office with over 800 price gouging complaints. Several lawsuits have been filed against various companies for exploiting such a state of emergency. One particular case, State v. Downey, leaves a question for those that oppose gouging laws: is having an exorbitantly expensive option really better than having none?

State v. Downey Summary

On October 17th, State Attorney General Josh Stein submitted a 73-page lawsuit detailing how Kentucky-based Action Tree Pros, Inc. charged a homeowner almost $80,000 to cut down five trees. Owner of the company Downey gave an owner a $5,000 estimate for tree removal; after the tree was removed, the owner received a $10,565 bill, after which the owner texted Downey seven times not to cut down any more trees. Downey continued to ask for payment for unrequested tree removals and even threatened the owner in an email correspondence. Through the suit, the Attorney General claimed to seek restitution for the homeowner.

In the lawsuit against Action Tree Pros, Inc., Stein called Downey’s actions “heartless and illegal.” His goal was to force Action to pay the homeowner back and be barred from running the business in North Carolina. In a press release, Stein reiterated, “Each of these cases is a perfect example of why we have a price gouging statute in North Carolina. These out-of-state operators inflate their prices to take advantage of people’s vulnerability as they try to cope with the effects of Hurricane Florence. It’s heartless, illegal, and my office will not allow it.”

North Carolina’s Price Gouging Laws

In North Carolina, the gouging law is triggered whenever the state is threatened by a natural disaster. The law allows the Office of the Attorney General to seek refunds for customers who fell victim to price gouging. In court, civil penalties can also be imposed against price gougers — for up to $5,000 per violation. Stein’s office renders it easy for citizens to report potential gouging—all that’s required is filing an online complaint or calling a number listed on the official website.

But some feel that determining what is gouging and what isn’t can be difficult. Patrick DeHaan, an analyst for the GasBuddy app, assured that there had been no reports of gouging in the wake of Florence. As told to CBS News, “To date, we have not received a single photo of receipts or signs showing far above average prices.” Yet, over 500 complaints after the hurricane were related to gas and water, raising concerns on gouging criteria. “You’d have to understand what that station was charging prior to the storm,” DeHaan said on gas station complaints. “The price, in and of itself, is not gouging criteria.”

Gouging Accusations From Texas After Harvey

During Hurricane Florence, a similar trend emerged, where most of the 600 price gouging complaints were related to drinking water and gasoline. In July 2018, the Texas Attorney General resolved 48 price gouging cases involving gas stations, ordering station owners to pay more than $160,000 in a restitution fund for customers who purchased gasoline.

However, Michael Giberson of the Dallas Morning News said that the price gouging law—and the resulting settlement—had backfired. He claimed that larger corporations such as Home Depot and Walmart were able to respond to the disaster quickly and effectively, while small businesses had a more difficult time. According to Giberson, “while consumers do not like higher prices after disasters, consumers are better off with gasoline available at a high price rather than no gasoline for sale at all.”

Giberson’s comments reflect dissatisfaction many Texans felt with price gouging investigations after Hurricane Harvey. Pamela Villarreal, a professor at the University at Texas at Dallas, told the Dallas News that inflicting financial penalties on price gougers doesn’t benefit disaster victims. Giberson also claimed that “the law was meant to help, but it creates incentives that prevent aid from going to those who need it most.”

State v. Downey: A Different Kind of Gouging?

Compared to the complaints on rising water and gasoline prices that may or may not be attributed to price gouging, a case such as State v. Downey seems like an outlier. To some consumers, price gouging laws in the midst of Hurricane Harvey appeared unnecessary and dissatisfying. However, in this specific lawsuit, a homeowner was not only dissatisfied but harassed and forced to pay almost $80,000 for the removal of five trees from her property. Having price gouging laws in this situation makes it not only possible but expected, to have the Attorney General fight to bar the gouger from working in North Carolina.

If these sorts of cases become more common, arguments against price gouging could become less relevant.

Author Bio: Dominique Karesh is a Freshman majoring in public policy. She is from Asheville, N.C.

 

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Cooper v. Harris

By Neelesh Moorthy | October 4, 2017

 

Introduction

 

In May 2017, the Supreme Court struck down two North Carolina congressional districts (CD1 and CD12) as unconstitutional racial gerrymanders. The State argued regarding CD1 that race-based redistricting was done to comply with sections two and five of the Voting Rights Act of 1965. This defense reflected an inherent tension in the Court’s jurisprudence: simultaneously condemning race-based redistricting while mandating it in certain circumstances. Responding to CD12, North Carolina argued that they engaged in partisan, rather than racial, gerrymandering.

The Supreme Court rejected both arguments, unanimously for CD1 but split 5-3 with regards to CD12. This article argues that the Court reached the correct outcome for CD1, but ignored its own precedent when evaluating CD12.

Whatever one thinks of the outcome of this case, however, North Carolina redistricting is not free from legal contestation. The drafters of CD12 openly acknowledged districting was done to serve Republican interests and promote Republican candidates. Next term, the Supreme Court will consider a case out of Wisconsin, Gill v. Whitford, addressing whether partisan gerrymanders can be unconstitutional. The Court’s decision in that case could have significant implications for districting in North Carolina. Already, the Middle District Court for North Carolina has refused to invalidate congressional maps on a partisan-gerrymandering basis, citing the Supreme Court’s inability to find a suitable legal standard.[1]

This review ultimately argues that the best course of action for the Court would be to find political gerrymandering cases nonjusticiable. The Court should do so both because of the difficulty in finding a proper legal standard and the likely politicization of the courts these lawsuits would bring.

 

Background

 

The congressional districts at issue in Cooper v. Harris were congressional districts one and twelve (CD1 and CD12). After the 2010 census, the North Carolina General Assembly began the redistricting process pursuant to the North Carolina Constitution. Senators Bob Rucho and Representative David Lewis, both Republicans, engaged Dr. Thomas Hofeller to create the new maps. The revised boundaries were eventually adopted in July 2011. Several lawsuits were then filed against the drafters for unconstitutional racial gerrymandering. At issue was the fact that the two districts’ “black voting age population” had jumped from 47.76 percent to 52.65 percent in CD1 and from 43.77 percent to 50.66 percent in CD12.[2]

North Carolina makes no secret that it used race to design CD1. Rucho and Lewis in fact have publically stated they did so to avoid liability under sections two and five of the VRA. Section two prohibits electoral laws leading to a situation where minorities have “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Section five prevents “covered jurisdictions” from adopting any change that would diminish the ability of a minority group to elect their “preferred candidate of choice.” The latter is known as the “retrogression” standard, because it deals with changes to electoral laws, whereas section two deals with challenges to existing laws.[3]

The question for the Supreme Court was not whether race was the “predominant factor” in the redistricting effort, because the State admitted as much.[4][5] They had to decide whether the state could justify its use of race under a strict scrutiny standard, requiring a compelling state interest and measures narrowly tailored to achieve that end.  The Supreme Court unanimously found that the State could not meet this high threshold, and it was correct to do so.

But CD12, North Carolina argued, was a different beast. The State argued that redistricting here was done primarily on the grounds of partisan, not racial, gerrymandering. Here, the Supreme Court faced the harder task of determining in the first place whether race was the “predominant factor” in redistricting. The Court found that it was, but this time with a dissent authored by Justice Samuel Alito and joined by Justice Anthony Kennedy and Chief Justice John Roberts. Had the Supreme Court properly read its precedent, the dissent would have carried the day.

 

Congressional District 1

 

The most salient issue debated between the parties here was whether the creation of majority-minority districts could survive strict scrutiny because it was done to comply with sections two and five of the VRA. The Supreme Court was correct to rule that North Carolina could not pass this test.

To understand why, a dive into Court precedent is necessary.

In a 1986 case, the Court clarified in Thornburg v. Gingles the parameters of section two. It identified three prerequisites before a plaintiff could successfully claim a violation of section two:

  1. The minority group must be “sufficiently large and geographically compact to constitute a majority in a single-member district”
  2. The minority group is “politically cohesive”
  3. If Whites voted as a bloc in the district, this would be sufficient to “usually defeat the minority’s preferred candidate.[6]

The converse of that ruling is that only if those standards are met is the state likely to succeed in using section two of the VRA as a justification to create majority-minority districts. There can’t be a remedy without a problem to solve. This latter point is evident in the 1995 case Miller v. Johnson and the 1996 case Shaw v. Hunt.

Miller v. Johnson dealt with what was then DOJ policy to mandate majority-minority districts. In response to the DOJ’s policy, the Georgia General Assembly made an active effort to add an additional such district to its map. But the Court wrote that “compliance with federal antidiscrimination laws cannot justify race-based districting where the challenged district was not reasonably necessary under a constitutional reading and application of those laws.[7]” And in Shaw v. Hunt, the Court found racial gerrymandering impermissible because the district being altered was not “geographically compact” enough to satisfy the Gingles factors.[8]  Also see Bartlett v. Strickland: “majority-minority districts are only required if all three Gingles factors are met and if §2 applies based on a totality of the circumstances.[9]

When the Gingles preconditions are not met, using section two as a strict scrutiny defense is unlikely to succeed, because using race is not “reasonably necessary” to protect minority voters.

It seems clear that the Gingles preconditions are not met with CD1, specifically the third condition. The third condition states that a White voting bloc be sufficient to “usually defeat the minority’s candidate of choice.” But that plainly isn’t the case here. In 2008 and 2010, the incumbent in CD1—G.K. Butterfield[10]—won reelection with 70 and then 59 percent of the vote. This, despite African-Americans not being a majority in the district at that time. There was not a unified racial bloc against the “minority’s preferred candidate.” North Carolina could not justify using race to comply with VRA section two—it was not “reasonably necessary” to change the district.[11]

But what about their section five defense? Dealing with section five in Alabama v. Alabama Black Legislative Caucus, the Court articulated a standard saying legislators must have a “strong basis in evidence” to use race when they have “good reasons” to believe doing so was necessary to avoid retrogression, even if a court finds using race was not in fact necessary.[12]  That standard was applied in the Bethune Hill case, where the Court affirmed a lower court ruling that Virginia District 75 was constitutional despite a 55 percent BVAP target. It decided this based on what it deemed a good-faith “functional analysis” of the district in question.[13]

So, what about North Carolina?  There is little reason to think there was a “strong basis in evidence” or “good reasons” to create a majority-minority district to avoid retrogression. This is true for much the same reason in denying the section two defense—the African-American preferred candidate had a long track record of success without a BVAP over 50 percent.[14] There is no reason to think maintaining a non-majority-minority district would have diminished the minority group’s ability to elect their “preferred candidate” when it hadn’t in the past. This case is also different from Bethune Hill: a candidate in the questioned district there had actually requested a higher BVAP, and unlike Butterfield had run unopposed in the years prior to the redistricting.[15]

The State does cite a NAACP report contending that CD1 did suffer from racially polarized voting,[16] and one NAACP document predicted CD1 would “likely lack in African American population.[17]” These would have constituted the strongest argument in favor of overturning the lower court and rendering the district constitutional.

But the Court correctly reviewed the lower court’s decision on a “clear error” standard, meaning that it would not overturn the lower decision unless it was “clearly erroneous.[18]It does not seem likely the lower court made such an error by relying on consistent historical voting patterns.

In conclusion, the Court was correct to find North Carolina could not survive a strict scrutiny analysis with regards to CD1.

 

Congressional District 12

 

All of the CD1 analysis flowed from the initial understanding that race had been the “predominant factor” in redistricting. That point is not conceded with regards to CD12—the State in fact argues that political gerrymandering was the “predominant factor” here, and racial gerrymandering a byproduct of the correlation between race and party.

 

The leading authority on how to decide which interest dominates is Easley v. Cromartie, a Supreme Court case also involving North Carolina.  The district court had concluded race was the “predominant interest” in redistricting the contested district by reference to the district’s “unusual shape” as well as an email between senators noting that they had “moved Greensboro’s Black community.” But the Court was not convinced this alone proved racial intent, especially when race and politics are so intertwined. Eventually, the case set out an important rule:

 

“In a case such as this one where majority-minority districts (or the approximate equivalent) are at issue and where racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles. That party must also show that those districting alternatives would have brought about significantly greater racial balance.[19]

North Carolina claimed that this “alternative map” requirement was a categorical rule, but the Court disagreed.[20] It wrote that this case differed from Cromartie because there was more direct evidence regarding racial gerrymandering in this case. For example, the lower court credited a public statement by Rucho about “creating new majority African American districts” to comply with the VRA. The Supreme Court, citing this statement and others, affirmed the lower court and held the district unconstitutional.

It decided Cromartie had not established a categorical rule, but rather one suited to the unique circumstance where evidence of racial intent was lacking. It also pointed out that racial gerrymandering claims often involve context-specific and multi-factor analyses, such that making one piece of evidence (an alternative map) dispositive would not make sense.

The Court is likely right that this “alternative map” requirement is not categorical, but it is still mandatory “in a case such as this one.” And this case is not sufficiently different from Cromartie to ignore the “alternative map” requirement. Accordingly, the dissent’s view, which would have upheld the district because plaintiffs failed to produce an alternative map, was correct.

For the pieces of evidence showing racial intent, there is another showing partisan intent. For example, Dr. Hofeller testified that his instructions “were to treat District 12 as a political district” and that his use of Guilford County was just a precaution.[21]” Race was clearly a concern. But the conflicting evidence means these statements do not establish it was the “predominant concern,” which is what matters.  

Accordingly, the “alternative ways” requirement should still have applied, so long as the differentiation between political and racial motivations was not clear cut. This case is sufficiently a “case such as [Cromartie]” in that regard.[22] The Court’s gerrymandering jurisprudence is already convoluted and difficult for lower courts to interpret: attempting to distinguish away Cromartie here only makes it more so. The Court should have abided by its precedent and placed the alternative map burden on the plaintiff.  

Of course, the dissent’s conclusion leads to even more difficult questions. Can partisan gerrymandering really be a legitimate defense to racial gerrymandering? There are good reasons to think partisan gerrymandering is not a legitimate defense, not the least because serving individual senators is different from serving the interests of the more amorphous State. Supreme Court precedent from Davis v. Bandemer has held that partisan gerrymanders can be unconstitutional, although it has not yet struck down a map on that basis. It came close in the 2004

Vieth case[23] to overruling that decision and rendering such gerrymanders nonjusticiable, although it failed to do so.

But whether or not North Carolina’s partisan gerrymander is unconstitutional has no bearing on the resolution of Cooper v. Harris. Even if the map would have been unconstitutional as a partisan gerrymander, this case was about racial gerrymanders. So long as the plaintiffs failed to meet their alternative maps burden, the Court should not have struck down the district. The partisan gerrymandering case could then have been addressed in later litigation with full briefing on that particular issue.

 

Partisan Gerrymanders

 

Unfortunately, the legal status of partisan gerrymandering is perhaps more convoluted than racial gerrymandering law. Next term’s Gill v. Whitford case has the potential to clean up the confusion, although if past cases are any indication that is no guarantee. So far, the Supreme Court has said, in Davis v. Bandemer, that partisan gerrymanders can be unconstitutional in egregious circumstances. But the Court in several cases since has failed to agree on a standard to make this determination. In Vieth, the Court almost decided to render these cases nonjusticiable, but Justice Kennedy held out hope that a standard could arise in the future. 

Stemming from Wisconsin, the Gill case addresses an alleged unconstitutional partisan gerrymander by the Wisconsin General Assembly. The lower court adopted a tripartite test to decide whether or not a partisan gerrymander was unconstitutional:

  1. The redistricting scheme must have “intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of political affiliation”
  2. The scheme must have that effect
  3. The scheme cannot be justified on other, legitimate grounds

In theory, establishing intent might not be too difficult. In the Wisconsin case, legislators had drawn different maps and assigned to each map partisan scores assessing how favorable they were to Republicans. North Carolina senators, as mentioned before, were blunt about their intentions in public.

Problems arise, however, when deciding how to evaluate the effects of an “impediment on the effectiveness of the votes of individual citizens.” What level of impediment is too much? The answer to that in the lower court’s opinion, it seems, turned on the competing regression analyses of expert witnesses and sensitivity testing that predicts election results in the future. The court found that these predictive analyses (showing entrenchment), combined with evidence from two elections under the challenged district map, were sufficient to find a severe impediment.  

For further measure, it also looked at the efficiency gap. The efficiency gap measures the difference in relative difference in wasted vote totals between the parties, where wasted votes are the number of votes cast “for the losing candidates in district races” along with “the number of votes case for the winning candidates in excess of the 50% plus one votes necessary to secure the candidate’s victory.” Mathematically the equation is as follows, where “W” is the wasted votes for a party and “n” is the total number of votes:

  • EG = (WB – Wa)/n

Although much media attention has focused on the EG, the lower court only considers it after discussing other evidence showing an impediment on voting strength. This is an important distinction. Critics of the lower court decision claim the EG implies a constitutional requirement that there be proportional representation (a party winning x percent of the vote entitles them to y percent of congressional seats). But the Supreme Court has stated on several occasions that this right does not exist. If the EG were the crux of the lower court’s argument, then the decision could not stand. But, the EG is only used as supporting evidence for a discriminatory effect, so its use does not doom the partisan gerrymandering claim.

But even if the EG is not the most important measure, there still has to be some sort of empirical measure to establish an effect on voters. Testimony about regressions and mathematical adjustments dominates the lower court’s opinion; unfortunately, most judges are not social scientists or mathematicians. The test proposed by the lower court seems bound to force judges to grapple with simulations and regressions that will likely reach opposing conclusions. The judiciary should be wary of creating a cause of action that will so largely depend on judges evaluating the accuracy of different mathematical measures, especially when the controversy involves the political process.

There are other arguments, however, that could support a partisan gerrymandering claim. Articles by Michael Parsons and Justin Levitt point out that perhaps an effects-based test is the wrong approach.[24][25] Both propose an “intent” based test that more closely mirrors how the Court already decides racial gerrymandering cases. If partisanship is the “predominant intent” behind the redistricting plan, the argument goes, the map is unconstitutional just as it would be if race were the “predominant intent.” This is because the harm here is that the government is using a discriminatory classification, which is easier for judges to assess.

If the Court were to strike down a partisan gerrymandering map, this should be the standard they use. It avoids inviting a wave of litigation that will hinge on how different courts evaluate different and often complex mathematical tests. If the Court were to find predominant intent, then the State would have to justify its action. Political preference in modern jurisprudence is not typically considered to be a suspect class, so the State would only need to meet rational basis review. This standard is the most lenient level of scrutiny, calling for a law to be “rationally related to a legitimate government interest.”

Although that standard is easier to manage, the Court should still decline to adopt it. It carries with it problematic assumptions about the political process. It assumes that voters vote solely for party, and not for a candidate or on policy issues. In this way, political classifications during redistricting are different than political classifications that, say, tax people based on political activity[26] or punishing an employee for involvement in a political campaign.[27] It might very well be the case nowadays that most voters do follow the party line, but this is not a judgement a court ought to enshrine into law.

Separation of powers principles also counsel not adopting this standard.  Legislators will always try to find some political advantage in redistricting, and allowing courts to hear these claims will lead to countless lawsuits by both parties. Asking courts to discern legislative motive with regards to race is one thing, but is quite another when it comes to political tactics. To preserve judicial independence—something increasingly under attack today—the Court would do best to stay out of the fray.

[1]David Harris v. Patrick McCrory (UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 06, 2016).

[2] McCrory v. Harris (UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 05, 2016).

[3] McCrory v. Harris (UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 05, 2016).

[4] McCrory v. Harris (December 5, 2016). Oral Arguments.

[5] McCrory v. Harris (UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 2016).

[6] Thornburg v. Gingles (UNITED STATES SUPREME COURT 1985).

[7] Miller v. Johnson (UNITED STATES SUPREME COURT 1995).

[8] Shaw v. Hunt (UNITED STATES SUPREME COURT 1996).

[9] Bartlett v. Strickland (UNITED STATES SUPREME COURT 2009).

[10] The court assumes, without providing evidence, that Butterfield is the “preferred candidate” of African Americans in this district. Although perhaps justifiable by his role as chair of the Congressional Black Caucus, making such an assumption is a pernicious aspect of this case, and of application of the Gingles factors in general. However, this conclusion is not contested by the parties, so it is unlikely the Court would use this as grounds to overrule the lower court.

[11] Bartlett v. Strickland in fact notes that such “crossover voters” make satisfying Gingles unlikely.

[12] Alabama v. Alabama Black Legislative Caucus (UNITED STATES SUPREME COURT 2015).

[13] Bethune Hill v. Virginia State Board of Elections (UNITED STATES SUPREME COURT 2017).

[14] Although the Georgia v. Ashcroft (2005) case emphasizes that section two and section five claims are different, it also notes that the analysis of the two sections could still intersect.

[15] Bethune Hill v. Virginia State Board of Elections (UNITED STATES SUPREME COURT 2017).

[16] McCrory v. Harris. (May 24, 2016). Appellants’ Brief in Opposition to Appellee’s Motion to Affirm.

[17] McCrory v. Harris. (January 17, 2014). NC NAACP Plaintiffs’ Responses to First Request for Production of Document (excerpted) (filed in Dickson v. Rucho)

[18] Bethune Hill v. Virginia State Board of Elections (UNITED STATES SUPREME COURT 2017)

[19] Easley v. Cromartie (UNITED STATES SUPREME COURT 2001)

[20] McCrory v. Harris (December 5, 2016). Oral Arguments

[21] McCrory v. Harris (UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 05, 2016).

[22] Easley v. Cromartie (UNITED STATES SUPREME COURT 2001)

[23] Vieth v. Jubelirer (UNITED STATES SUPREME COURT 2004)

[24] Michael Parsons, Clearing the Political Thicket: Why Political Gerrymandering for Partisan Advantage is Unconstitutional, 24 Wm. & Mary Bill Rts. J. 1107 (2016)

[25] Levitt, Justin. Intent Is Enough: Invidious Partisanship In Redistricting, 59 Wm. & Mary L. Rev. (2017)

[26] Levitt, Justin. “Symposium: Intent Is Enough,” SCOTUSBlog. August 2017.

[27] Heffernan v. City of Paterson, New Jersey (United States Supreme Court 2016).

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Beck v. McDonald: Standing Requirements in Consumer Data Breach Suits

Cybersecurity and consumer data breaches pose a real and continuing concern, as theft of sensitive information leaves its victims vulnerable to incidents of identity fraud. However, court precedent has shown a reluctance to hear any cases that cannot prove “certainly impending” harm from such theft. The Supreme Court’s decision in Clapper v. Amnesty has guided later court decisions on these issues. In Clapper, plaintiffs sued to have the Foreign Intelligence Surveillance Act (FISA) of 1978 declared unconstitutional. The plaintiffs claimed that the U.S. government was likely to use FISA to seize their communications with third parties overseas, who would have shared sensitive information with the plaintiffs’ attorneys. The Court found that the plaintiffs failed to meet Article III standing requirements to bring their lawsuit in court, as the court was not certain that the government would intercept any of the plaintiffs’ communications, and any risk of future harm was too speculative.

For these cases to move forward, plaintiffs must establish Article III standing, which consists of three minimum requirements: an injury-in-fact, which is a concrete and particularized invasion of a legally protected interest; causation, which requires a fairly traceable connection between the alleged injury in fact and the alleged conduct of the defendant; and redressability, which requires that it is likely and not merely speculative that the plaintiff’s injury will be remedied by the relief plaintiff seeks in bringing suit.”

The Fourth Circuit is now the latest of federal courts to make a decision on whether individuals have standing to sue an organization or firm for negligence in cases of consumer data and cybersecurity breaches. The Beck v. McDonald lawsuit stems from two unrelated incidents that occurred at the William Jennings Bryan Dorn Veterans Affairs Medical Center in Columbia, South Carolina. The Beck case arises from an incident in February of 2013, when a laptop was stolen from the facility. The laptop contained unencrypted personal information of approximately 7,400 patients, including names, birth dates, the last four digits of Social Security numbers, and physical descriptors. Results of an internal investigation showed that this use of an unencrypted laptop to store patient information was against protocol. The Dorn VAMC notified Richard Beck and the other patients of the theft and offered to pay for one year of credit monitoring. The plaintiffs sued then-VA secretary Robert McDonald and other officials for violations of the Privacy Act of 1974, 5 U.S.C.A. § 552(a), the Administrative Procedure Act, 5 U.S.C.A. § 701, and common law negligence. The district court dismissed the suit. They found that, pursuant to Clapper, the Beck plaintiffs lacked Article III standing because they had not shown sufficient evidence of “certainly impending” identity theft.

The other incident of the Beck lawsuit, the Watson case, arises from an incident in July 2014, when the Dorn VAMC discovered that four boxes containing pathology reports had disappeared. The reports contained personal information of over 2,000 patients, including names, Social Security numbers, and medical diagnoses. As they had done following the laptop incident, the Dorn VAMC notified the patients of the stolen documents and offered each of them one year of free credit monitoring. The plaintiffs sued along similar lines as the Beck plaintiffs.

The district court also dismissed this suit for a lack of standing. They held that the plaintiffs lacked standing because it was speculative that information from the documents would eventually be misused.

Beck and Watson both appealed to the Fourth Circuit, which joined the two cases and affirmed the district court’s rulings. The Fourth Circuit also applied the “certainly impending” test from Clapper, and they ruled that the risk the plaintiffs’ information could be misused was not sufficient to meet the standard of “certainly impending” harms. However, the Plaintiffs argued that the district court’s ruling essentially forces plaintiffs to show concrete evidence that their personal information had been misused, which would cause someone in their position to have to wait until they were actually harmed before being able to sue. The circuit court rejected this claim while recognizing that other circuits had allowed similar suits to proceed. But they differentiated these cases on factual background information, as the cases that were allowed to proceed had shown that the thieves had intentionally targeted the personal information of the plaintiffs, implying a higher probability of impending harm.

However, it seems that there may be a better approach for plaintiffs to establish Article III standing to sue for cybersecurity breaches. In one of the footnotes, the Fourth Circuit also addressed a data breach suit against Horizon Healthcare Services that was allowed to move forwar. The plaintiffs successfully established standing by alleging that Horizon Healthcare Services violated a privacy statute, and that in and of itself was a de facto injury, satisfying the concreteness requirement for Article III standing. The Fourth Circuit noted that the Beck plaintiffs did not argue for standing on a statutory violation alone. They also noted that the tactic has had varying levels of success, citing the decision on Gubala v. Time Warner Cable, Inc. However, despite an imperfect track record of success, it seems that an attempt to establish Article III standing via statutory violation as an injury-in-fact may be the more promising route for a plaintiff without an abundance of evidence to show inflicted or “certainly impending” harm.

 

Haley Amster is a junior from Los Angeles, California studying Philosophy.